OSD 311: The courts will never protect your rights
Freedom means never having to say certiorari.
There’s this idea that courts exist to backstop your rights. If you’re charged criminally, the court will make sure that your rights aren’t violated during your trial. If a law deprives you of your rights, someone will file a lawsuit to get the law struck down. This makes courts feel like the place where “real” progress happens. Cultural forces ultimately lead to a landmark court decision, and that’s what sets the cultural progress in stone.
But … is any of that actually true?
In your criminal trial, the court will indeed make sure, for the most part, that the rules of evidence aren’t flagrantly violated and that you get all the standard procedural protections. The court will also make sure that your lawyer isn’t allowed to tell the jury about jury nullification. And they’ll make sure that the normal process is followed when prosecutors seize your assets during the trial, preventing you from paying for your defense or making bail.
In an extreme case, the court will allow you to be convicted of NFA violations because you knew the legal definition of a machine gun and the judge didn’t, like this guy we tweeted about last week:
That’s if you go to trial. Across the US, 98% of convictions come through plea bargains, not jury trials. During the plea bargain process, prosecutors are free to stack up charges, bring extra charges with mandatory minimum sentences, and threaten to indict your family members, all to coerce your guilty plea. That leverage works. It’s why 98% of convicts forfeited their right to a trial. Courts will dutifully make sure that your extortion follows all the right process steps.
Things aren’t much better in the constitutional law arena. The Supreme Court does occasionally step in to rule that, say, free speech is still protected. But by and large, when an emergency threatens to sweep away somebody’s rights, the Supreme Court’s response has been to cheer on the mob. There is just a very meager history of courts actually protecting people’s rights when it really counts.
Why is that?
Well, why would courts protect rights? They come from the same process that took the rights away. What determines your rights is the culture that the courts are steeped in. The decision is made in what charges are brought, not in what happens in the courthouse. From a previous newsletter, written two months before the Bruen decision came out:
It’s easy to point to moments where the Supreme Court spectacularly discarded people’s rights — Plessy v. Ferguson, Buck v. Bell, Wickard v. Filburn, Korematsu v. U.S., etc. etc. — as the thing that allowed a terrible chain of events. But did they allow the events, or were they caused by those same events? In the case of, say, Korematsu, you had a country that was willing to force everyone on the west coast with Japanese ancestry into camps. Would that country have been stopped by a Supreme Court that in the midst of it all piped up to say, “Hey everyone, you can’t imprison people for being Japanese, ok?” And more to the point, would such an environment produce a Supreme Court that would say that?
Conversely, and less famously, it’s also easy to find examples where the Supreme Court did stand up for people’s rights … and was ignored. Re Worcester v. Georgia, there’s the Andrew Jackson apocrypha that “John Marshall has made his decision, now let him enforce it.” In the 1950s and ‘60s, the Court’s school desegregation rulings would have been dead letters without the years of hands-on enforcement effort they were followed up with. And apart from the residents of D.C. and Chicago being able to own and carry handguns, Heller changed nothing on the ground for anybody’s gun rights.
And yet, gun rights have gotten stronger. In most of the country, they’re in much better shape today than they were in 2008. There’s a real possibility that Bruen makes shall-issue the law of the land in the next two months. But that’s on the back of a successful multi-decade effort to liberalize carry laws state by state. If 42 states were still may-issue, as they were in the ‘80s, Bruen would be a pipe dream.
But the cultural groundwork still matters more than the law. Think ahead. Suppose in a few weeks, Clarence Thomas writes a barnburner majority opinion in Bruen. Shall-issue is the law of the land. Yay.
But is it the law in practice? Some states will just go with it. But others are going to Rube Goldberg their way out of this. “Sure, you can get a carry permit. The application costs $340, plus another $88.25 for fingerprints [1]. You have to interview in person. Appointments are available from 9-9:30am on the third Monday of every month. You also can’t carry in bars, restaurants, event venues, or on public transport.”
What really keeps gun rights healthy isn’t a court coming in to save the day at the last second. It’s people liking gun rights to the point that the question never needs to go to court.
The Supreme Court can help around the edges. But it has never demonstrated an ability to turn a popular tide. It ratifies what’s coming anyway. Either the Court gets on board, or people keep trying until it agrees with them.
This implies that if it’s not your job, paying attention to the courts is mostly a waste of your time. They’ll appear to produce wins and losses and so will seem important. But what they’re actually doing is reflecting wins and losses that were already baked a long time ago by technological and cultural factors.
This week’s links
Matt Carriker of Demolition Ranch is putting his resort up for sale
A cool $15 million, 354-acre property two hours from Austin, Texas.
National map of training courses
Handy resource from Blue Alpha.
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Unfortunately, the pendulum is swinging the other way in the ban states.