I understand the point the author is trying to make and have said the same thing myself -- that ill-conceived challenges can help build a body of bad case law that will be used when a closer case is pursued.
I do take exception with the statement that a defense attorney is not acting ethically by making such challenges, even if considered to be a "hail mary." Guess what? Sometimes the hail marys actually work!
Now put yourself in the position of someone charged with a firearms crime. You ask your public defender lawyer, "Can't we argue that this is a Second Amendment violation and is unconstitutional?"
Your lawyer says, "You're a victim of bad timing. The chances are not real great right now, only about one in ten. If you had waited a few more years, we might have a better shot at it."
"One in ten? I'm facing 15 years. Let's go for it!"
"Sorry, but I don't want to screw it up for the next guy with a better case by setting bad precedent. You'll just have to do the fifteen. See ya' when you get out."
A lawyer's duty is to the client. Many either don't have the evident skill of Mr. Gura or, very often, the time it takes to write A+ level of brief Gura files in these cases. They also don't get to sit back and wait for just the right client to come along in order to challenge the law. That doesn't mean they don't have the "skill and competence" needed to make such challenges as meant by the ethics rules. They only have to be "reasonably competent" and not perfect when representing their clients.
Not a defense attorney. I wear a white hat.
