Publisher's note: The author of this post is Mitch Kokai, who is senior political analystx` for the Carolina Journal, John Hood Publisher.
Federal courts over the past decade have chipped away at the landmark gun-rights ruling in a case called District of Columbia v. Heller. But even those who favor that outcome should worry about the process that produced it.
That was a key message Alan Gura
delivered recently to a Raleigh audience. Gura was the lawyer who argued for the winning side when Heller appeared before the U.S. Supreme Court.
In a 5-4 ruling, the high court's justices held in 2008 that the Second Amendment to the U.S. Constitution guarantees an individual's right to possess a firearm outside the context of a militia. The ruling specifically struck down restrictions on handguns, rifles, and shotguns in the nation's capital.
A decade later, the Heller decision carries little practical impact in much of the country. Gura admitted as much during a Feb. 1 panel discussion hosted by Campbell University's law school. "I think it's fairly obvious that many judges have simply not accommodated themselves to the decision in Heller,"
he said. "They don't think it's legitimate. They don't believe that it's real. And absent actually being compelled by the Supreme Court to do so, they will not enforce it."
"Is Heller something that's going to survive?"
Gura asked. "Given the intensity of the resistance to it, I'm not so sure that it will."
It's unclear whether the U.S. Supreme Court ever would vote formally to overturn Heller. Gura suspects the ruling's opponents would prefer that option. But he says some opponents assure him "it will just be narrowed into nothingness."
Evidence exists that this process already is taking place, Gura said. Some federal courts in the past decade have avoided the precedent-setting Heller majority opinion from Justice Antonin Scalia. Instead judges have latched on to arguments Justice Stephen Breyer offered in dissent.
Judges also have engaged in the process of "narrowing Supreme Court precedents from below,"
Gura said, quoting the title of a 2016 Georgetown Law Journal article from Richard Re of UCLA's law school. "The idea is that there are some decisions of the Supreme Court that are so wrong ... or so offensive ... for whatever reason, they are narrowed from below by the lower courts that don't give them the most reasonable construction, but give them the most palatable one ... at least palatable to the judicial class,"
In this case, Heller's opponents might support this outcome. Heller supporters are likely to object. But Gura looks beyond the particular case. He sees a problem.
"The reality is that I and other lawyers have clients who come to us,"
he explained. "They have real, serious questions that arise under the Second Amendment. ... And I ask the potential client, 'Where are you?' And if they're in certain [federal Appeals Court] circuits, I say, 'Forget it. It doesn't really matter.'"
This situation should bother those who treasure our system of constitutional law. "Ask yourselves what this does to us as a nation that's supposed to be a nation of laws and not men - or women. We have female judges, too,"
Gura said. "Is it really a fact that we are the kind of country ... where you go to the lawyer's office, and the lawyer says, 'Well, you're going to win or lose based on who the judge is sitting today'?"
"Is that really what we want for anything, but - most especially - for the Constitution?"
Law schools teach that American courts are based on a system of "vertical precedent,"
Gura said. "When one court says something, the lower courts are supposed to follow it,"
he said. "That gives the law its essential value of predictability."
Law explains our rights and duties and sets out legally acceptable behavior. One court ruling helps predict the next ruling. "That requires judges to make decisions that they don't personally like,"
Gura said. "So even if you think Heller is wrong and horrible ... the consequences for America are terrible. ... That's all well and good, but this is the Supreme Court's doctrine."
The consequences extend beyond the heated debate over gun rights. "I would make a prediction that if this phenomenon were to continue, that a lot of the people who are OK with the practice might someday have some very long faces when the tables are turned and something that they care about as a matter of precedent is limited into oblivion,"
Potential damage extends beyond those fighting for particular political causes. "We can laugh about turnabout and fair play,"
Gura said. "I'm mostly concerned about what this is doing to Americans - to my clients and to people in the public - who are becoming cynical about the mission of the federal courts."
If judges continue to ignore or undermine precedents established by the nation's highest court, it will be harder and harder to argue against that cynicism.