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Old January 13, 2010, 10:41 PM   #1
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Great Article from CRPA

Great article explaining how arrogance of some attorneys could cause the fall of the 2nd amendment. While some things are quoted from California law, it's definitely not limited to CA. A little long, but worth the read. Also gives insight into why our pro-gun organizations are not filing tons of lawsuits

The Next Arms Race
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Old January 14, 2010, 12:25 AM   #2
Al Norris
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For nearly seventy years the case of United States v. Miller, 307 U.S. 134 was hailed by gun control groups as decisively applying only a col*lective right to bear arms. Such an interpretation was due, in part, to the fact that neither the defen*dant nor their legal counsel appeared at the United States Supreme Court--who does that? That inter*pretation was wrong!
Mr. Davis almost lost me, as a reader with this.

That is hardly the correct characterization of Miller, from either the standard theory or the collectivists theory.

But when Davis wrote this:
This was, in the short term, a fantastic victory for the Second Amendment movement and pro-rights organ*izations everywhere. In the long term, however, it will likely lead to the demise of the Second Amendment, due in part to violations of ethical stan*dards as well as arrogant attorneys (working without long term plans, strategic ability, or foresight)
Well, it was a struggle to finish the article.

Not a mention of McDonald, Sykes, Pena or Palmer. There's a clear strategy, long term goal, ability and foresight in these lawsuits.

Yeah, I get what he is saying, but it is the same defeatist attitude that I heard immediately following Heller. Blithely claiming the "sky is falling" without even trying to see what is really happening.

Seems I made the first response to that opinion piece.
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Old January 14, 2010, 07:23 AM   #3
Bartholomew Roberts
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I think that was written primarily for a specific audience - criminal defense lawyers. The author accurately recognizes that many of the people facing firearms charges are criminals and that because of the novelty of Heller, many criminal defense attorneys end up making a Second Amendment argument thinking "maybe it will work" without taking the time to look into the actual underlying law or the issues.

He is reminding attorneys that you must competently represent your client and making a Second Amendment argument you cannot competently present in the hopes of hitting a "Hail Mary" pass is a violation of the California standard of ethics.

He then encourages these attorneys to seek out the advice of the experts in the field before pursuing a Second Amendment claim and goes on to list what would make a good claim.

It looks to me like the article is really a plea not to create a lot of bad Second Amendment precedent by carelessly making Second Amendment claims on the hopes that maybe your client will get lucky. He is basically asking the criminal defense bar to leave it to the professionals on this issue.

A well-meaning request to be sure; but probably an unrealistic one since it depends on attorneys actually having an interest in promoting the Second Amendment and I don't think that is the case in most of the cases he is seeking to prevent - not to mention that there is also an ethical obligation of the lawyer to zealously represent your client and not making an argument you can make because it might create bad legal precedent - well, it is good strategy to be sure; but not so great for your client.
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Old January 15, 2010, 01:11 PM   #4
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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.
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Old January 15, 2010, 05:10 PM   #5
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Interesting paper. I wonder how many people know that Jack Miller was a hoodlum and that two days after his case was argued he was murdered.


Brady's use this all the time saying that criminals will use 2A to get out of gun charges. I think that is why Heller was careful not to invalidate all gun control laws except for the most draconian and egregious and where they have little impact on LE
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