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August 12, 2008

Updates on post-Heller Second Amendment litigation

As regular readers will recall, I predicted lots and lots of lower court litigation driven by federal criminal defendants in the wake of the Supreme Court's Heller Second Amendment ruling.  Eugene Volokh has been doing an effective job keeping up with much of this litigation, and here are a few of his more recent posts discussing various lower court Second Amendment rulings:

In his review of all this litigation, Eugene rightly notes in nearly all post-Heller cases, lower courts have rejected (often with sloppy reasoning) efforts by criminal defendants to apply Heller and the Second Amendment in a way that would help gun owners.  I continue to be disappointed, but not at all surprised, that lower courts have proven so eager and able to give short shrift to the Heller ruling when criminal defendants are asserting Second Amendment rights.

Interestingly, Orin Kerr has this new notable post also over at The Volokh Conspiracy, titled "Justice Kennedy, Heller, and the Future of the Second Amendment," in which he reports that at the recent Ninth Circuit judicial conference "Justice Kennedy appears to suggest ... he will take a living constitutionalist approach to the Second Amendment that may point to more gun rights under the Second Amendment than an originalist approach would provide."  If Justice Kennedy is serious about taking Heller and the Second Amendment seriously, criminal defendants should keep pressing their claims at least until the Supreme Court has a chance to speak to the many issues left unresolved in Heller.

Some related post-Heller posts:

August 12, 2008 at 07:14 AM | Permalink

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Comments

The application of gun laws in urban areas, and in lower and state courts, often poses a stark contrast with higher and Supreme Court rulings. The principle of the Second Amendment is defended by the Supreme Court, but the partical application of the law in criminal matters is a much different creature.

Posted by: Joe | Aug 12, 2008 11:07:11 AM

Personally, I have no problem with felons, who have served their sentences, having their gun rights restored IF it is in conjunction with having their voting rights restored. In addition, I think they should be required to serve on juries as well. I find it rather annoying that many politicians want to restore the voting rights of felons yet draw the line at gun ownership and jury duty. Frankly, if you can be trusted to vote, you can be trusted to own a gun and serve on a jury.

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