There is enormous controversy over the attempt to get the U.S. Supreme Court to review the disastrous Silveira case. (Silveira v. Lockyer, 328 F.3d 567; 9th Cir. 2003). I have very strong views on the subject which I shall have to state somewhat simplistically because of word limitations.

The Unsophisticated View and the Wrong View

There are two quite different ideas that are expressed by people who think we should want to have the Supreme Court review Silveira. There are some who naively believe that all we need is one big Supreme Court victory and gun control will go away forever. That is not the way constitutional litigation works at all.

The way it actually works is illustrated by the Jehovah's Witnesses cases of the 1930s and 1940s. In those days the JWs were subject to enormous antagonism because they are pacifists and reject anything they interpret as idolatry to the state. This includes JW schoolchildren refusing to salute the flag, recite the pledge of allegiance, etc. All kinds of laws and police practices were directed against them. They brought not one case but a series of cases to the Supreme Court; and those cases established our modern doctrines of freedom of religion. The first victorious case was a vital first step, but had they only brought that case they would still have been subject to endless harassment under laws that differed from the one that first victorious case overthrew.

In sum, it is hopelessly unsophisticated to believe that one Supreme Court victory is going to make gun control go away. What is needed is one really strong first case, followed by another, followed by another, followed by another, followed by another, followed by another, and so on. With the constitutional law thus established we can go on to apply it ever more expansively.

In contrast to the Unsophisticated View, the Wrong View acknowledges that it will take multiple decisions to establish our Second Amendment rights. But its proponents see making an "assault weapon" case like Silveira the first Second Amendment case decided by the Court as a shortcut. They believe (all-too-rightly) that if the Supreme Court will invalidate an AW ban, it will invalidate virtually any other gun control. The problem is that the converse is far more likely: If the Court is given an AW case first, it is very unlikely to decide the case our way and its decision will doom other challenges to other kinds of gun control.

As far as today's judiciary is concerned, AWs are like land mines – things no decent, sane civilian has any reason to own or would want to own. And if their first crack at the right to arms is an AW case they are very likely to decide that there is no such right.

The Curse of the AW

We are not living in 1953 or 1963 or even 1973. Of course, by the last of those years, the military and anything associated with it was in bad repute with many Americans. Nevertheless, the judiciary had at least an elementary working knowledge of firearms. Virtually every judge had been in the service. Most had been in WWII and/or Korea or Vietnam. They knew what an M1 was and an M2 and an M3, and a "Tommy Gun," a BAR, etc. You could not have fed them the atrocious line of demonizing falsehoods about AWs that have been endlessly drilled into today's judges. As many as 90% of today's judges have little or no experience with firearms. And the remaining 10% are knowledgeable only about the guns they own and use – skeet guns, sporting clays guns, etc. As far as they are concerned the only reason one would have an AW is to go on a school playground and shoot down kindergarten children.

Nor am I just spinning some theory here. I am talking about the outcome of actual cases. Of course every lawyer with a long career has lost cases. But until I started litigating AW cases I had a virtually unblemished record, including having invalidated the San Francisco handgun ban in 1982. Since the late 1980s I have been involved in litigating AW cases; half a dozen in California and individual cases in Colorado and Connecticut. Every one has been an utter disaster.

Unlike California, Colorado, Connecticut, Ohio and Oregon used to have right to arms clauses in their state Constitutions. Unlike the phony controversy about the federal Second Amendment, these state right to arms clauses clearly did guarantee an individual right. But in each of those states AW bans were enacted by state or local law and well-meaning lawyers (including me) challenged those AW bans under the clear state constitutional right clauses. Because the clauses were so clear the judges were faced with a clear choice: they could either hold that AWs are constitutionally protected or they could read the right to arms clauses out of the state constitution. And that is what they did. The people of Colorado, Connecticut, Ohio and Oregon still have their state constitutional right to arms, of course – but only as long as no legislative body seeks to ban and confiscate their guns. If a ban is passed as to any kind of gun in Colorado, Connecticut, Ohio and Oregon the likely result of any constitutional attack on that ban is that it will be upheld on the same false reasoning that was used to uphold the AW bans.

Conclusion

The anti-gun lobby has used its falsified hysteria over AWs to incredible advantage. Vast numbers of people, including judges, who recognize the right to choose to keep a handgun in your house for self-defense regard owning an AW as only slightly less looney than insisting you need a bazooka to resist burglars or home invasion robbers.