Some litigation history for the kids....

[GunLawyer001]

Most of us here have at least a passing familiarity with the Heller (2008) and McDonald (2010) gun cases in the USSC. But some of you were not gun-owning adults back in the 1980's, so you may not be familiar with the case of Quilici v Village of Morton Grove.

That case serves as evidence to refute the proposition that "it's always better to at least try to do something now, than to wait for a better opportunity."

Here's a 2003 retrospective by David Kopel:
http://www.davekopel.com/NRO/2003/Secret-Weapon.htm

Here's a rebuttal by Victor Quilici, the guy whose case set gun rights back a few decades:
http://www.davekopel.com/2A/OthWr/QuiliciReponse.htm

Here's another viewpoint from Robert Kukla, who to some degree inexplicably blames "the Jews" for the gun ban, and praises Quilici while glossing over the fact that Quilici lost badly and created an adverse precedent that was far worse for American gun owners than waiting would have been:
http://www.davekopel.com/2A/OthWr/KuklaResponse.htm

Note that some of the arguments Quilici used in 1981 were the same arguments accepted by a narrow 5-4 majority in Heller in 2008, specifically the "home is your castle" argument and the "individual rights" argument. Different times, different courts, and a quarter century's difference in law review articles that set out the case for an individual right.

The main lesson, whichever version of the facts you accept in Quilici's case, is that timing is important, and the biases of judges are important, and that lawyers pushing cases for personal glory, while refusing to accept that other viewpoints may prevail, can set us back significantly.

[johnnyishootstuff]

It's a good illustration of what happens when half baked people quickly file lawsuits without thinking of the long game. Some people think it's about the fight and not the end goal of winning.

[FNG19]

You're right, of course. The "Mah Rahtz!" crowd is very busy finding podcasts and youtube videos to refute you with, I'm sure.

Your post (and many of the others in a similar vein) should be required reading before trying to be a plaintiff-turned-hero.

[GunLawyer001]

You're right, of course. The "Mah Rahtz!" crowd is very busy finding podcasts and youtube videos to refute you with, I'm sure.

Your post (and many of the others in a similar vein) should be required reading before trying to be a plaintiff-turned-hero.

I understand what you're saying.

But those who ignore the mistakes of history are doomed to repeat them.

The Quilici fiasco happened. That's a fact. There's nothing to refute, it's just events, and the opportunity to learn from the mistakes.

Ship designers need to know what happened to the Titanic. Gun rights activists need to understand that it's not about the battle, it's not about playing the game with style and enthusiasm and fanfare, it's about winning.

[twency]

…
Note that some of the arguments Quilici used in 1981 were the same arguments accepted by a narrow 5-4 majority in Heller in 2008, specifically the "home is your castle" argument and the "individual rights" argument. Different times, different courts, and a quarter century's difference in law review articles that set out the case for an individual right.

…

Let me play advocatus diaboli for a moment. Perhaps those law review articles setting out the case for an individual right were precipitated by the legal community's scrutiny of and reaction to the Quilici decision. Heller might well have gone differently without those articles, and we might have Quilici to thank for the articles, so ultimately we may have Quilici to thank for Heller.

Or not. Just a thought.

[streaker69]

I'm reading this page: http://www.saf.org/LawReviews/Quilici.htm and I found this part interesting:

By noting that a sawed-off shotgun is not "part of the ordinary military equipment" and its use could not "contribute to the common defense,"[41] the Court arguably established a test for determining a person's right to bear arms. According to this language in Miller, if an individual could prove that his weapon is one normally used by the [Page 1098] military, he would have an absolute right under the second amendment to keep the weapon.[42] Justice McReynolds, writing for a unanimous Court, undermined individual right interpretations of the second amendment, however, by declaring that the amendment must be interpreted with the "end in view" of maintaining and preserving the militia.[43] Manifestly, the second amendment appears to have been [Page 1099] designed to protect the state militia from destruction by the federal government. It did not create a personal right, inviolable by either state or federal authorities.[44]

If there were a renewed AWB, or the states that have already banned alleged AWB's, could the Miller v US decision be used to strike those bans down?

[GunLawyer001]

I'm reading this page: http://www.saf.org/LawReviews/Quilici.htm and I found this part interesting:



If there were a renewed AWB, or the states that have already banned alleged AWB's, could the Miller v US decision be used to strike those bans down?

I suspect that Miller was tacitly overturned by Heller. That observation that the empty table, where Miller and his counsel WOULD have sat, had failed to provide evidence that a sawed-off shotgun was useful for military purposes, presumes that only military purposes are protected by the 2nd Amendment.

Since Heller explicitly states that in-home self-defense is protected by the 2nd, the Miller test can't apply, and even self-defense weapons that are not commonly issued to soldiers are protected.

Of course, even the single-shot WW II Liberator pistol had military utility, so most weapons would be protected under the Miller test. On the other hand, self-defense is generally a short-range game, without the need to penetrate armor or lay waste to an entire platoon, so the Heller test excludes all of the unusual and particularly dangerous weapons, like nukes and anti-aircraft cannons.

[Willie D]

timing is important, and the biases of judges are important, and that lawyers pushing cases for personal glory, while refusing to accept that other viewpoints may prevail, can set us back significantly.

I've heard this said about Alan Gura. What's your take on that?

[GunLawyer001]

I've heard this said about Alan Gura. What's your take on that?

I took a CLE with a panel that included Gura, and he discussed the Heller case. Seems like Gura knew exactly how much we could get and still win Heller, and then McDonald. And he took the win. No need to spin that or shift blame, he won the cases, his strategy worked.

Others criticized him for throwing MGs under the bus so he could win his case, but I'd say that Gura was correct (despite my fondness for all things Title II), because he'd have lost at least one more Justice if he'd pushed it. And that would have turned a 5-4 squeaker for us into a total loss, a disaster for 2nd Amendment rights. Before Heller, neither side was sure how far the anti's could push us; if we'd have lost, we'd have seen total bans in the usual lib states, and in Congress.

Not everyone understands that particular lesson. Not everyone has the patience to get a win for individual rights, a win that we can perhaps expand on, the way that our opponents have incrementally taken away our gun rights. We can get them back incrementally, too, by building on careful, thought-out wins.

All you can build on a loss is more losses. From a win in Heller (the2nd is an individual right in Washington DC)) Gura went to McDonald (the 2nd Amendment applies to the states, too).

I'm aware that Gura took some heat from other lawyers and from gun rights advocates who wanted it all at once. There's an argument that the "privileges or immunities clause" argument was less persuasive than a "14th Amendment incorporation" argument, for example.

Bottom line, there will always be those who believe that life is like a horse race, and if they can injure someone who's ahead of them, then they'll move up a spot. That's not the case; you don't become a better lawyer by insulting people who are better than you; you become a better lawyer with experience and work. Otherwise, you become like a failed beauty queen contestant who tries to win by poisoning all the prettier girls.

[Truckman]

Why this thread, at this time? Are you commenting on what's happening in Erie?