DC Guns: The Dems Will Lead the Charge for Change

The March 9 decision by the DC Circuit Court of Appeals finding that the Second Amendment protects an individual right to keep and bear arms will have unexpected and almost unimaginable consequences. Foremost among them will be a Democratic effort to repeal the laws effectively banning ownership of handguns within the District of Columbia.

The Status Quo Is Acceptable But Unsustainable

The radical Democratic leadership, Clinton, Pelosi, Schumer, Kennedy, Feinstein and the rest, are comfortable with the current state of the law, a complete ban within the DC and various levels of restrictions (NYC, Chicago, California) and regulations (Ohio, New Jersey, Maryland) in the rest of the country. If there are future opportunities to expand the same rules, that's fine, but it’s not worth the substantial electoral cost to their party to attempt to tighten gun rules legislatively.

Unfortunately for them, the status quo is unstable and will change. If the Court’s ruling is unchallenged, the DC law is vacated and the Circuit Court ruling will influence all other courts across the land. Best case, it’s cited in a footnote from time to time. Worst case, it stimulates other lawsuits and similar judgments, opens academia from grammar school to law school to further discussion of the individual vs. collective rights arguments, and legitimizes decades of effort by the NRA and other supporters of the right to keep and bear arms to build an unassailable intellectual framework supporting the RKBA.

The potential damage gets even worse for them if the ruling is challenged. Current best thinking is that the Supreme Court would go 5-4 or better in support of the Circuit Court’s ruling, putting at risk many of the more than 20,000 laws across the country regulating gun ownership, every one of which would for the first time be subject to review on constitutional grounds. Whether that review falls into the “strict” or “intermediate” scrutiny bucket matters less; there is simply no way that many of those laws will survive any scrutiny. There will be years of litigation and legislation as citizens seek a new balance for the issue in nearly every jurisdiction that has a law on the books. If upheld, the ruling becomes is a ticking time bomb with the potential to make “gun rights” a primary issue in every election in every hamlet, village, city and state, as well as nationally. If that were to happen, it would spell disaster at the polls for the Democrats, just as it has nearly every time in the past. They cannot afford the fight, their losses at state and federal legislative levels would be too great.

A delayed decision from Supreme Court would be almost as bad as a quick decision. An appeal that isn’t resolved before the next election would be more motivational to gun rights supporters than to their opponents. The makeup of the Supreme Court would likely become a significant issue in the presidential and senatorial elections, again to the detriment of the Democrats.

The Smartest Move

Now that so much intellectual energy supports the individual rights position, the anti-gun group will ultimately suffer defeat in the argument on the Second Amendment. However, there is a strategy the liberal leadership could take to minimize the immediate negative effects of the ruling.

To prevent the disaster that will otherwise unfold over the next two years, they could arrange for the DC Council to appeal the ruling to the full Circuit Court. While there is little chance of reversal, certainly less than 10%, there is also no downside. It can’t get much worse for their position, and even a 10% chance of reversal, with no further risk, is a shot worth taking.

Given either a refusal of the full Court to hear the appeal or that it upholds the panel decision, the Democratic leadership really has no choice but to lean on the DC government to drop any further appeal and to immediately repeal the laws at question. While that would obviously not be a sign of confidence in their fundamental position, it would limit the immediate effect of what has already happened to DC. Even if there is only a 50-50 chance that the Supreme Court will eventually affirm the ruling, given the risks to the liberal position, both in terms of the issue but also in terms of electoral costs, the risk is too great to take.

Repeal by the DC Council would take the political issue off the table: The Circuit Court ruling would be moot and any further appeals would be foreclosed, obviating the threat of an adverse Supreme Court ruling and preventing intense national attention on the issue. Done properly, no visible action would be necessary by the national party or its leaders, there would be no fingerprints other than those of the politicians at the local level, who are presumably immune from voter retribution on nearly any gun issue. Making lemonade from lemons, the DC Council could both repeal the problematic law and pass new, equally restrictive legislation that would require another five or six years of effort to redress through the courts. They could successfully “kick the can” down the calendar, while maintaining effective gun control over the victimized citizens within the District.

Will it happen this way? It’s hard to say. The deciding factor will be the patience of the radical activist groups to whom Democratic leaders bow. It’s entirely possible that the Brady bunch and like-minded groups would not accept the wisdom of backing away from the potential Armageddon for their cause that an adverse Supreme Court ruling would represent. They may not agree that it would be preferable to give an inch in DC rather than risk an early heavy bet on a weak hand only to lose everything on a national scale.

In any event, it is only a matter of time before gun grabbing goes out of fashion, as eventually all truly bad ideas become embarrassing to their supporters. It may be that the DC Circuit Court not only found our missing individual right hiding plainly in sight but has also made clear that the statist counter argument, like the emperor of children's tales, has been wearing no (constitutional) clothing at all.

For further reading, Jennifer Rubin has done a superb job in Opening Shots at National Review Online describing the effects of the ruling on the Republican contests.

UPDATE: Glenn Reynolds has lots more on this over at Insta-Pundit.

UPDATE: Jonah Goldberg does an absolutely superb job illustrating the rapidly changing liberal posture on the Second Amendment, its increasing intellectual respect and the steps the anti-gun forces will need to take in order to return to the good old days. Read Gun-Shy Liberals over at National Review Online.

Update: Glenn Reynolds takes it up again at InstaPundit and Robert Levy worries about the NRA's role as he confirms for the first time that the NRA repeatedly attempted to derail his case.