Opinion: Daily Journal

Ignoring legal precedent helps fuel American cynicism

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,” Gura said.

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,” Gura said.

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.

Mitch Kokai is senior political analyst for the John Locke Foundation.

  • Fremont V. Brown III

    Do you wish to
    get serious about stopping the Mass Shooting’s?

    If, you answer Yes. Then start with the following:

    1. Admitting that Your Government is at fault. When they
    violated your 2nd amendment rights with every arms
    law, regulation and rule except the 2nd amendment
    they violated your 2nd amendment rights by removing
    and infringing your right to keep and bear arms, your right to
    self preservation, your right to self protection, your right to
    life. Your 2nd amendment rights must be restored.

    2. All Gun Free Zones are Killing Zones and must be removed.
    All elected officials that that vote for more gun control and
    refused to repeal All Gun Free Zones which are nothing but
    Killing Zones plus repeal every arms law, regulation and rule
    except the 2nd amendment violate their oath of office
    and need to be voted out of office.

    3. The people need to understand that the insane and criminal
    do not obey laws no matter how many unconstitutional laws our
    governments make.

    About Unconstitutional Arms laws, regulations
    and rules.

    Oath of Office: “The Senators and Representatives before
    mentioned, and the Members of the several State Legislatures,
    and all executive and judicial Officers, both of the United
    States and of the several States, shall be bound by Oath or
    Affirmation, to support this Constitution; but no religious Test
    shall ever be required as a Qualification to any Office or
    public Trust under the United States.”

    — U.S. Constitution, Article VI, clause 3

    Oath of Office – U.S. Senators and Representatives

    “I, (name of Member), do solemnly swear (or affirm) that I will
    support and defend the Constitution of the United States against
    all enemies, foreign and domestic; that I will bear true faith
    and allegiance to the same; that I take this obligation freely,
    without any mental reservation or purpose of evasion; and that I
    will well and faithfully discharge the duties of the office on
    which I am about to enter. So help me God” (5 U.S.C. §3331).

    North Carolina § 11-7. Oath or affirmation to support
    Constitutions; all officers take.

    Every member of the General Assembly and every person elected
    or appointed to hold any office of trust or profit in the State
    shall, before taking office or entering upon the execution of
    the office, take and subscribe to the following oath:

    “I, ___________, do solemnly and sincerely swear that I will
    support the Constitution of the United States; that I will be
    faithful and bear true allegiance to the State of North
    Carolina, and to the constitutional powers and authorities which
    are or may be established for the government thereof; and that I
    will endeavor to support, maintain and defend the Constitution
    of said State, not inconsistent with the Constitution of the
    United States, to the best of my knowledge and ability; so help
    me God.” (1781, c. 342, s. 1, P.R.; R.C., c. 76, s. 4; Code, s.
    3312; Rev., s. 2358; C.S., s. 3194; 1985, c. 756, s. 5.)

    The Second Amendment of the U.S. Constitution, the Supreme Law
    of the Land states:

    A well regulated Militia, being necessary to the security of a
    free state, the right of the people to keep and bear arms, shall
    not be infringed.

    Note: the people form the Militia, so the right is of the
    people, NOT the Militia.

    The Second Amendment protects the rights of all citizens of the
    United States and its territories. And puts limits on the powers
    of the Federal and State Governments, plus EVERY other
    government in the United States. No Government can violate a
    citizens rights guaranteed to them under the U.S. Constitution.

    Therefore, any and ALL Federal and State including any
    governments within a State, whose laws concern ARMS are
    infringements and are ILLEGAL under the U.S. Constitution and
    are therefore Null and Void as they are Unconstitutional. And
    this is the point of this paper. In
    order to be in compliance with they oath of office, our
    Senators and Representatives need to repeal all laws,
    regulations and rules concerning Arms. Please, keep in
    mind that the insane and criminal do not obey laws.

    Unconstitutional Official Acts 16 Am Jur 2d,
    Sec 177 late 2d, Sec 256:

    The general misconception is that any statute passed by
    legislators bearing the appearance of law constitutes the law of
    the land. The U.S. Constitution is the supreme law of the land,
    and any statute, to be valid, must be In agreement. It is
    impossible for both the Constitution and a law violating it to
    be valid; one must prevail. This is succinctly stated as

    The General rule is that an unconstitutional statute, though
    having the form and name of law is in reality no law, but is
    wholly void, and ineffective for any purpose; since
    unconstitutionality dates from the time of it’s enactment and
    not merely from the date of the decision so branding it. An
    unconstitutional law, in legal contemplation, is as inoperative
    as if it had never been passed. Such a statute leaves the
    question that it purports to settle just as it would be had the
    statute not been enacted.

    Since an unconstitutional law is void, the general principles
    follow that it imposes no duties, confers no rights, creates no
    office, bestows no power or authority on anyone, affords no
    protection, and justifies no acts performed under it…..

    A void act cannot be legally consistent with a valid one. An
    unconstitutional law cannot operate to supersede any existing
    valid law. Indeed, insofar as a statute runs counter to the
    fundamental law of the land, it is superseded thereby.

    No one is bound to obey an unconstitutional law and no courts
    are bound to enforce it.