Winning in court is not just about being right on the law — it is about being patient, strategic, and ruthlessly selective about the cases you bring. The gay rights movement understood that better than almost any civil rights campaign in American history. The Second Amendment movement must internalize the same lesson right now, before bad fact patterns at the Supreme Court lock in precedents we will spend decades fighting.
From Bowers to Obergefell: A Master Class in Patient Litigation
In 1986, the Supreme Court decided Bowers v. Hardwick, 478 U.S. 186 (1986), ruling 5–4 that there was no constitutional right to sodomy. The gay rights movement did not panic and immediately run to the Court demanding marriage equality. They played a long game.
In Romer v. Evans, 517 U.S. 620 (1996), Justice Kennedy wrote for a 6–3 majority striking down Colorado’s Amendment 2 — a statewide ballot measure that barred state and local governments from enacting protections based on homosexual, lesbian, or bisexual orientation — as a violation of the Equal Protection Clause of the Fourteenth Amendment. A targeted, winnable step.
In Lawrence v. Texas, 539 U.S. 558 (2003), the Court reversed Bowers outright, 6–3, holding the Constitution protects the liberty of consenting adults to engage in private sexual conduct. Another brick.
United States v. Windsor, 570 U.S. 744 (2013), brought by Edith Windsor — a widow who simply wanted federal estate-tax recognition of her marriage to Thea Spyer after Spyer’s death — struck down Section 3 of the Defense of Marriage Act, Pub. L. 104-199, as a violation of the Fifth Amendment’s Due Process Clause. Justice Kennedy again wrote the majority. Windsor was maximally sympathetic: a grieving spouse, a tax refund, no edge cases.
Then, and only then, did the movement press for the capstone. Obergefell v. Hodges, 576 U.S. 644 (2015), held 5–4 that same-sex couples have a fundamental right to marry under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Justice Kennedy wrote again. The entire project, from Bowers to Obergefell, ran nearly thirty years — and produced a total victory.
What the Trans Community Got Wrong
Compare that to United States v. Skrmetti, 605 U.S. ___ (June 18, 2025). The trans rights movement took Tennessee’s Senate Bill 1 — a law prohibiting gender-affirming medical procedures for minors — all the way to the Supreme Court without building the necessary doctrinal foundation first. Chief Justice Roberts wrote the majority for a 6–3 Court upholding SB1 under rational-basis review. Justices Barrett, Thomas, and Alito each wrote separately concurring in the result.
The strategic misjudgment was profound. This Court — composed as it currently is — was never going to hold that minors have a constitutional right to undergo permanent medical procedures over a state’s objection. The case was brought at the wrong moment, with the wrong framing, against a law that had enormous intuitive public support. The door slammed shut. Precedent now makes it dramatically harder to advance that agenda through the courts.
The Second Amendment Parallel
The lesson maps directly onto our litigation landscape. The Bruen framework — the text-history-and-tradition test established in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) — is still being fleshed out. Open questions abound: How many historical analogues must exist to establish a tradition? How tightly must the “how” and “why” of a historical law match today’s regulation? What is the relevant date — 1791 is the right answer, but the Court has not yet formally said so.
In that environment, the plaintiff matters enormously. Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc), is the model to follow. Bryan Range was convicted in 1995 of a Pennsylvania food-stamp false-statement offense — $2,458 — sentenced only to probation, never imprisoned, and clean for decades. He simply wanted to buy a rifle and a shotgun. The Third Circuit held that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to him. That is Jean Valjean territory: a nonviolent, reformed person shut out of his constitutional rights for a minor transgression a generation ago. Nobody roots against Jean Valjean.
Now contrast that with the fact patterns we should be terrified of. United States v. Rahimi, 602 U.S. 680 (2024): Zackey Rahimi assaulted his girlfriend, shot at witnesses, and the Supreme Court upheld 18 U.S.C. § 922(g)(8) — the domestic-violence restraining order provision — 8–1. Justice Thomas was the lone dissenter. Nobody on that Court was going to hand a firearm back to someone with that record.
Then there is United States v. Hemani, No. 24-1234 (argued March 2, 2026; decision pending) — a case I believe was a serious strategic mistake. The respondent was found with a 9mm pistol, marijuana, and cocaine, with alleged communications linking him to Iranian Revolutionary Guard Corps-affiliated contacts, though no terrorism charges were filed. Bringing that fact pattern to the Supreme Court while Bruen’s contours are still unsettled risks producing bad law. My frustration with that choice is real.
Read the Room
The same logic applies to machine guns and the NFA. I have genuine problems with the Hughes Amendment, 18 U.S.C. § 922(o), which banned civilian transfer of machine guns manufactured after May 19, 1986. But the test case has to be right. Bad facts make bad law. An unsympathetic plaintiff gives the Court an off-ramp — applying the historical-analogue test at a high level of generality, making it easier for future gun-control laws to survive.
The goal is win the next achievable case, build the doctrine, and stay patient. Take the Bryan Range cases. Avoid the Rahimi cases. Let the methodology mature before pushing the hardest questions.
Thirty years of patience won the gay rights movement everything they set out to achieve. I would rather wait and win than rush and hand the other side a gift.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.