In the Crosshairs: Second Amendment Lawyers and Cases in State and Federal Appellate Courts
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Graduate Theses, Dissertations, and Problem Reports 2011 In the Crosshairs: Second Amendment Lawyers and Cases in State and Federal Appellate Courts H. Carl Taylor III West Virginia University Follow this and additional works at: https://researchrepository.wvu.edu/etd Recommended Citation Taylor, H. Carl III, "In the Crosshairs: Second Amendment Lawyers and Cases in State and Federal Appellate Courts" (2011). Graduate Theses, Dissertations, and Problem Reports. 3468. https://researchrepository.wvu.edu/etd/3468 This Dissertation is protected by copyright and/or related rights. It has been brought to you by the The Research Repository @ WVU with permission from the rights-holder(s). You are free to use this Dissertation in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you must obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/ or on the work itself. This Dissertation has been accepted for inclusion in WVU Graduate Theses, Dissertations, and Problem Reports collection by an authorized administrator of The Research Repository @ WVU. For more information, please contact [email protected]. In the Crosshairs: Second Amendment Lawyers and Cases in State and Federal Appellate Courts H. Carl Taylor, III Dissertation submitted to the Eberly College of Arts and Sciences at West Virginia University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Political Science John C. Kilwein, Ph.D., Chair Richard A. Brisbin, Ph.D. Jason A. MacDonald, Ph.D. Jeff Worsham, Ph.D. James Nolan, Ph.D. Department of Political Science Morgantown, WV 2011 ABSTRACT In the Crosshairs: Second Amendment Lawyers and Cases in State and Federal Appellate Courts H. Carl Taylor, III Judicial behavior, the types of activities and behaviors judges become involved with in their capacity on the bench, has a profound and lasting impact on the types of decisions rendered by judges across all courts that comprise the American judiciary (Baum 2000; Baum 2006; Maveety 2002). There is a growing realization that judicial behavior encompasses more than just the making of good laws and public policy decisions (Baum, 2000; Baum 2006; Hammond, Bonneau, & Sheehan 2005; Comparato 2003). For example, Songer & Haire (1992) explore integrated approaches to the study of judicial voting through obscenity cases in the U.S. Courts of Appeals. Creating an integrated multivariate model that combines five approaches to judicial voting, the authors find that this new model correctly predicts about 80% of the judges’ votes on obscenity cases with an error reduction rate of almost 46%. My dissertation focuses on the judicial behavior of state Supreme Court and U.S. Courts of Appeals judges through the lens of Second Amendment claims and issues, a polarizing American political issue over the last fifty years. Through a descriptive and logistic regression analysis of the extent of 488 Second Amendment court rulings made in state courts of last resort and U.S. Courts of Appeals rendered between 1960 and 2009, I theorize that state Supreme Court selection methods, the presences of a state intermediate appellate courts, U.S. Courts of Appeals majority presidential party nomination panel, along with state and federal appellate circuit political ideology, urban/rural dynamics, gun ownership percentage, and homicide rates will have an impact on the outcome of Second Amendment decisions at these various judicial levels. For instance, an elected state Supreme Court system is more likely to produce a gun rights ruling, while an appellate panel with a majority of judges appointed by Democratic Presidents would be more likely to produce a gun control ruling. The results indicate state and appellate circuit political ideology (conservativeliberal spectrum) and gun ownership percentages affect the outcome of Second Amendment decisions in state Supreme Courts and the U.S. Courts of Appeals, while homicide rates affect these decisions in state courts of last resort. As such, a conservative political ideology and high gun ownership percentage in a state or appellate circuit means that it is more likely for their judges to produce a gun rights ruling, while a liberal political ideology and low gun ownership percentage means that the state or appellate circuit is more likely to produce a gun control ruling. One chapter explores these dynamics at the state Supreme Court level, while a second chapter does the same in the U.S. Courts of Appeals. A third substantive dissertation chapter considers the impact of legal participation, litigation strategies, venue-shopping, along with interest group coordination, networking, and organization, in planned telephone interviews with pro-gun and gun control Second Amendment interest group lawyers who have litigated cases in these two levels of the state and federal judiciary between 1960 and 2009. In this chapter, it is theorized that there will be clear differences between gun rights and gun control interest groups, and heavily funded and lesser funded interest groups, with regard to the five major interview issues listed above. Twenty-one interviews with interest group lawyers will be conducted between 24 August and 15 October 2010. To My Wife, Maggie “What greater thing is there for two human souls than to feel that they are joined together to strengthen each other in all labor, to minister to each other in all sorrow, to share with each other in all gladness, to be one with each other in the silent unspoken memories?” -George Eliot iii ACKNOWLEDGEMENTS For assistance and advice, the author’s obligations are many. My greatest debt is to my doctoral committee composed of Dr. John Kilwein, Associate Professor of Political Science and Associate Political Science Department Chairman , Dr. Richard Brisbin, Professor of Political Science, Dr. Jason MacDonald, Assistant Professor of Political Science, Dr. Jeff Worsham, Professor of Political Science and Director of Political Science Graduate Studies, and Dr. James Nolan, Associate Professor of Sociology and Anthropology, under whose thoughtful guidance and constructive criticism aided the research undertaken and whose friendly counsel was a continuing source of encouragement throughout the time it took to complete this document . For their generous interviews and pleasant conversations, I desire to express my sincere thanks to each and every one of the interview respondents, whose responses allowed for an entire chapter to be completed. My obligation is heavy to the numerous authors of books, articles, and other materials whose work served as central theoretical sources of information and guidance, as indicated in the endnotes and works cited pages. Numerous other local, state, and federal officials were generous with their time answering questions and supplying needed information that could not otherwise be produced or obtained by the author. Elvis, my devoted dog, also deserves acknowledgement. He sat beside me as I wrote virtually every page of this manuscript. While his support wasn’t the same as others I have mentioned, it was just as important. His loyalty gave me strength when my ambition to complete this document waned. Finally, I could not forget my wife, Maggie, by expressing sincere thanks for her continued inspiration and encouragement throughout this sometimes challenging process. To you, I owe the greatest debt of gratitude for allowing and pushing me to spend most of my time completing this document. iv TABLE OF CONTENTS Chapter One Current Second Amendment Literature and Introduction to the Research Setting ......................... 1 Constitutional Underpinnings ............................................................................................. 4 The Problem of “Original Meaning” ................................................................................. 10 Linking Founders Views to Firearms Policy History ........................................................ 11 Contemporary Constructions of the Second Amendment ................................................. 14 Roots of the Political and Cultural Debate over the Second Amendment ........................ 21 The Second Amendment and Interest Groups ................................................................... 24 Introduction to the Research Setting ............................................................................................. 30 Chapter Two Second Amendment Cause Lawyers ............................................................................................. 40 Styles of American Cause Lawyering ........................................................................................... 42 Individual Client Lawyering ............................................................................................. 42 Impact Cause Lawyering ................................................................................................... 45 Mobilization Cause Lawyering ......................................................................................... 48 Client Voice Lawyering .................................................................................................... 50 Design of the Research .................................................................................................................. 52 Interest Group Case Participation ....................................................................................