The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,[1] and the buzz has been considerable. Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point. What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.
The repudiation of this extensive body of case law[2] suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts.
If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity. Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions.
In the pages that follow, we take a look at these aspects of Heller. The triumph of the Standard Model of the Second Amendment is examined in Part I. Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic. Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls post-Heller.
...
In Lopez, the Supreme Court struck down the Gun Free School Zones Act as being in excess of Congress’s enumerated power to regulate commerce among the several states. In the years following Lopez, hundreds of cases flooded the lower courts, most brought by defendants convicted of violating various federal criminal statutes, claiming that those laws also exceeded Congress’s commerce power.[16] In the five years after Lopez, however, only one law—the civil suit provision eventually invalidated in Morrison—was struck down by a federal appellate court.[17] Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add, “and we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-Morrison framework. Though before Raich signaled a retreat, lower courts were beginning to uphold as-applied challenges to particular federal statutes.[18]
Will Heller suffer Lopez’s fate, serving more as casebook fodder than as actual authority? On the surface, there are some analogies between the Commerce Clause and the Second Amendment that suggest that, like Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least nothing much.
...
On the other hand, there are several important differences that ought not be overlooked between the situation following Lopez and that likely to follow Heller. Perhaps most important is the fact that there was virtually no coordinated follow-up litigation to Lopez on the part of the public interest bar. Most of the litigation was opportunistic: Lopez was cited in just about every appeal on behalf of those convicted of federal criminal offenses, who, as a group, rarely present the most sympathetic face. By contrast, several lawsuits were filed challenging gun control laws in other communities within hours of the Heller opinion’s publication.[27] Given the stakes, interest groups challenging local laws have greater incentive than individual criminal defense attorneys to ensure that only the best cases with the cleanest facts are brought.
Moreover, there was relatively little public interest in Lopez or the Commerce Clause. The Second Amendment, on the other hand, is among the most significant provisions of the Bill of Rights from the standpoint of public engagement.[28] The public interest groups sponsoring follow-up litigation will have every incentive to publicize lower court attempts to evade or blunt the effect of Heller and can try to choose cert-worthy cases from among those to be litigated. Given popular interest, the media and elected officials will have an incentive to monitor lower court implementation of Heller.
It is also possible that the lower courts’ hostility to an individual right to arms was largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare decisis as by any institutional interest. With the individual right theory of the Second Amendment now not only endorsed by the Supreme Court, but also, thanks to extensive scholarship, academically respectable (and, of course, popular with a very large majority of citizens) it may be that today’s federal judiciary will be less hostile to the right than past courts.
Read the article here. I think the authors are correct that Heller will generate far more intense interest than Lopez did. Even though Lopez overturned a gun-control law, the Gun Free School Zones Act (subsequently re-enacted by Congress with changes), it did so on Commerce Clause, rather than Second Amendment, grounds. The public interest in Commerce Clause jurisprudence is far less than the public's interest in Second Amendment issues.
Judges who continue to uphold gun-control laws in the wake of Heller will face considerably more vocal public scrutiny and criticism (from both sides of the issue) than they did in the wake of Lopez, so they are much more likely to carefully ground their decisions in the individual rights framework mandated by Heller. I expect we'll see the circuits split over the standard of review in the next couple of years worth of litigation, with circuits such as the Ninth (based in San Francisco), First (out of Boston), and Second (New York City) favoring as low a standard as they think they can get away with, while circuits such as the Fifth (based in New Orleans) ruling in favor of more stringent standards of review. This isn't necessarily a bad thing in terms of the bigger picture, because the Supreme Court is more likely to grant cert in cases where such a circuit split exists.
The key, as in Heller, will be getting good cases, with sympathetic plaintiffs, to the Supreme Court. Groups like the NRA and the Second Amendment Foundation can help serve an important role along with pro-Second Amendment attorneys in recruiting such plaintiffs and taking a strategic view of the litigation to achieve particular goals. In the short term, incorporation is a key goal. Establishing the standard of review will be another critical goal, with the obvious objective of having the highest level of scrutiny apply. This will be trickier, particularly in light of the Court's own dicta in Heller. That's why the getting the right case before the Court will be really important.
Posts
No comments:
Post a Comment