This column by ACRU Senior Legal Analyst Ken Klukowski was published April 16, 2013 on Breitbart.com.
The Supreme Court has declined to take Kachalsky v. Cacace, what could have been the next big Second Amendment case for the nation. But Kachalsky was a flawed case, and another case with different lawyers might have better chances of building Supreme Court precedent in the right direction.
Kachalsky was a challenge to New York’s law disallowing carrying guns outside your home without a permit, and also challenged the Empire State’s power to deny those permits if the applicant lacks “proper cause” to have a gun for self-defense.
This case also raised the important issue of what level of judicial scrutiny courts should apply in Second Amendment cases. While terms like “strict scrutiny” and “intermediate scrutiny” are very much in the weeds of lawyer-speak, they nonetheless determine how broad and robust your rights are to have a gun under the Second Amendment. It is imperative that the Supreme Court address this issue soon.
But Kachalsky was a flawed case for two reasons, and it might be a good thing that the court passed on this case and instead waits for the next one. First, the current membership of the Court might be too deferential toward a state requiring you to get a license to have a gun for self-defense. The Second Amendment guarantees you this right, so you shouldn’t need government permission to have an ordinary handgun if you’re a law-abiding and peaceable citizen. But there’s reason to doubt we have five votes to say that today at the Supreme Court, so having no precedent is better than bad precedent.
The second problem is the legal team. The lawyer representing Alan Kachalsky is Alan Gura, who argued both of the previous Second Amendment cases at the Supreme Court. But when the Supreme Court correctly decided that the Second Amendment is an individual right in D.C. v. Heller, it set aside Gura’s flawed argument, and instead adopted the argument from Prof. Nelson Lund’s amicus (friend of the court) brief about how to correctly interpret the Second Amendment.
Judge Larry Silberman of the D.C. Circuit federal appeals court–who wrote the opinion for the appeals court in Heller before the case went to the Supreme Court–spoke about the case at a conference dinner in January 2012 at the Omni Shoreham in Washington. Silberman criticized Gura’s legal briefs in the case, and how he handled oral arguments, saying that Silberman and his law clerks had to do much of their own research to make the case come out the right way. It’s unusual to have a federal appeals judge make such remarks publicly.
Then came the 2010 case McDonald v. Chicago, where the Court correctly held that the Second Amendment right to keep and bear arms–which, like the rest of the Bill of Rights, only protects you against the federal government–was also a fundamental right that applies to state and local governments through the Fourteenth Amendment. Gura insisted on making the argument that the Supreme Court should overrule one of its most famous (and problematic) precedents, the Slaughter-House Cases from 1873, in order to apply the right to keep and bear arms to the states.
As I wrote for my previous media outlet at the time, the justices were stunned by this argument. For example, Justice Antonin Scalia blasted Gura for taking the Court’s time with that argument, sarcastically asking him if he was doing it to get a professorship at some law school. (Having covered almost a hundred Supreme Court cases, I don’t recall ever seeing one of the justices smack a lawyer like that during argument.)
McDonald was a three-way argument, where legal superstar Paul Clement argued for the NRA. Clement’s argument was flawless (as usual), and easily won the case. By contrast, not a single justice out of the nine–liberal or conservative–voted in favor of Gura’s argument.
And recent cases illustrate just how reckless this strategy can be. Schrader v. Holder was a case challenging the federal law banning felons and certain other types of convicted criminals from owning guns. Gura was representing a Navy veteran who had gotten in a fist fight in 1968, and was convicted of a crime for which he’s not allowed to own a gun under this federal law. This veteran served honorably in Vietnam and has been a model citizen all the rest of his life. But instead of arguing that this federal law is unconstitutional only as applied to someone like Jefferson Wayne Schrader, Gura insisted on swinging for the fences, arguing this law is unconstitutional as applied to a broad class of convicts.
On Jan. 11, 2013 in Schrader v. Holder, a 2-1 conservative panel of the D.C. Circuit unanimously rejected that argument. The judges noted a case where a felon was convicted for committing the same crime under Maryland law as Schrader had committed, where that person had climbed into someone’s car, stabbed his victim in the neck and chest, and left him in a gutter. The court noted that if it accepted Gura’s argument, it would have to say that violent felon still had a constitutional right to demand a gun. The court predictably refused to go there.
The court also took the unusual step of saying that Gura’s argument had been too broad, instead of arguing:
that the statute is invalid as applied to Schrader specifically. Were this argument properly before us, Heller might well dictate of different outcome… we would hesitate to find Schrader outside the class of ‘law-abiding, responsible citizens’ whose possession of firearms is, under Heller, protected by the Second Amendment. But we need not wade into these waters, because plaintiffs never argued [this federal law] was unconstitutional as applied to Schrader… Given this, we believe the wisest course of action is to leave the resolution of these difficult constitutional questions to a case where the issues are properly raised and fully briefed.
The outcome in Schrader was a terrible disappointment to the NRA and lawyers involved in Second Amendment litigation (including me), and leaves one good American without his constitutional rights. It was a perfectly winnable case, but when lawyers try to hit a home run they can overreach and risk losing cases that could be won.
Second Amendment supporters can’t afford such risky behavior at the Supreme Court. So perhaps it’s better that the Court wait for another case.
Incidentally, such a case may be in the offing right now. As I’ve previously written, Moore v. Madigan is a challenge to Illinois’ law that doesn’t allow citizens to carry guns outside their home. It’s even more restrictive than the New York law in Kachalsky, because Illinois didn’t even have the option of issuing permits to allow carrying a gun. The Seventh Circuit appeals court struck down that law.
Rumor has it that anti-gun Mayor Mike Bloomberg and his team are pressuring Illinois to accept defeat and not ask the Supreme Court to take the case. Another rumor is that Illinois Attorney General Lisa Madigan is persuaded to take the loss, but anti-gun Gov. Pat Quinn still wants to appeal. It’s not clear what Illinois will do.
If Madigan asks the Supreme Court for review, this would make a picture-perfect case to take the next step in developing constitutional law for the right to bear arms. Ironically, Gura is involved in this case as well. But if the Court takes this case, it will also take NRA’s companion case as well, and once again Paul Clement would be on hand to make sure the legal briefs and arguments say what they must say to maximize the odds that the Court will again reach the right conclusion, this time holding that you don’t lose your Second Amendment rights when you leave your home.