AKElroy said:
...What is the remedy if the Supreme Court were to have decided in Heller that there is no individual RKBA? Would you remain consistent and argue that such a ruling would be constitutional?...
Let's first be clear. It's fatuous to talk about a ruling of the Supreme Court on a constitutional question as being unconstitutional. As I've explained multiple times, with regard to any disagreement on what the Constitution means or how it applies, the Constitution itself refers that matter to the Supreme Court. The question is within the scope of the Supreme Court's exercise the judicial power of the United States to decide.
That is a reason why the NRA at one point in the natural history of
Heller was very reluctant to see the case proceed. The composition of the Court at that point was more likely to be more hostile to the "individual right" argument. When there was a shift, the NRA withdrew its opposition. But
Heller was a particularly scary case. It really was "for all the marbles."
Once a pivotal constitutional case has been decided by the Court, those antagonistic to the result will continue to press their case, both in the political arena and in further litigation. That was certainly the case following the decisions of the Court in
Brown v. Board of Education and
Roe v. Wade. Legislation and litigation in areas related to those subject matters continues to this day. Gun control advocates have been doing so post
Heller. And if
Heller had gone the other way, we'd have to try the same sorts of things. But we'd be at a great disadvantage.
So if
Heller had found that the Second Amendment describes only a collective right, we'd have to argue for broader legislative recognition of the RKBA as good public policy. Legislatures can certainly recognize boarder rights than constitutionally required. And the Constitution can be amended to obviate decisions of the Supreme Court widely enough considered to be unsatisfactory.
But sadly absent an "individual right" Supreme Court reading of the Second Amendment, the political climate in much of the country is such that we'd likely to be witnesses today the rapid and dramatic contraction of the RKBA. Something to be considered by those who would urge a Supreme Court chosen by popular vote.
And a word on idealism. Ideals are important, and I'm not suggesting that we give up seeking what we think is right. But we're not going to get anywhere with that quest if we don't have a solid grounding in how things work in the real world. Our lawyers got a favorable result in
Heller by understanding reality. Things would not have worked out so well if they had tried to do so by chasing unicorns.