Monday, March 23, 2009

NYT: Heller firing blanks

From the New York Times, on the effect thus far of the Supreme Court's Heller decision:
About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal immigrants and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles, who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”
Professor Winkler summarized the impact of Heller in an article to be published in The U.C.L.A. Law Review in June. “So far,” he wrote, “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.”

There is one arguable exception to this trend. Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of the television show “America’s Most Wanted.” The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.
The consensus among most legal scholars is that incorporation of the Second Amendment is likely. True, the Supreme Court has said in some past cases that the Second Amendment applies only to the federal government. But a footnote in Heller cast doubt on those decisions. For now, lower courts probably have to follow the older decisions until the Supreme Court says otherwise.

There are cases in the pipeline, notably in the federal appeals courts in Chicago and San Francisco, that could give the court an opportunity to answer the question in its next term.

Even if the court applies the amendment to the states, though, little may change. Most state constitutions already protect an individual right to bear arms, and federal protection, depending on its form, could well be merely duplicative.

But some liberal lawyers and law professors sense an opportunity, and they have urged courts to incorporate the Second Amendment in a novel way, one that might help liberal arguments for protecting rights not specifically mentioned in the Constitution. Abortion and gay rights come to mind.
“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

Article here. Let's hope Professor Levinson turns out to be mistaken.

Discerning readers would be wise to take everything the New York Times says on the issue of gun control (of which they are a big fan) with a grain of salt. If I recall correctly, the UCLA law professor they quote, Adam Winkler, supported Washington, D.C.'s side in a Supreme Court amicus brief in the Heller case. Sanford Levinson, as I recall, was one of the few liberal law professors to support an individual rights view of the Second Amendment, in a law review article he wrote, if memory serves, way back in the late eighties.

None of the lower federal courts will move aggressively to protect Second Amendment rights unless and until the Supreme Court says (1) the Second Amendment applies to the states, and (2) defines the applicable standard of review as something greater than so-called "rational basis" review (almost all gun-control laws would pass rational basis review). Ideally, the Court would require gun-control laws to pass the so-called "strict scrutiny" standard, which is the highest and most demanding level of constitutional review for the government to defend against, although I'm frankly not all that hopeful that they will do so. They may choose instead some lesser standard, greater than rational-basis review, but not quite strict scrutiny.

The Chicago gun ban and related cases will hopefully provide the Supreme Court with an opportunity to decide the incorporation issue, i.e., whether the Second Amendment applies to the states. We may, however, have to wait for another case to resolve the applicable standard of review. Unfortunately, the wheels of constitutional law grind slowly.

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