October 8, 2008
Has there been a single pro-gun-rights rulings in lower courts since Heller?
Today I came across promotions for two new books that both appear to be celebrating the Supreme Court's Second Amendment ruling in Heller: The Heller Case: Gun Rights Affirmed and Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. I then recalled this post yesterday from Eugene Volokh reporting on yet another lower court opinion rejecting an effort by an individual to assert gun rights based on Heller. Putting all this together, I am wondering if I am the only one that has noticed and been seriously troubled by the fact that there apparently has not yet been a single notable lower court ruling that protects gun rights in the wake of Heller.
As the title of this post suggests, it is possible that I have missed a pro-gun-rights Second Amendment ruling from a lower court in the four months since Heller came down. But all the lower court cases I have see have rejected Heller-based claims. Before I buy any books celebrating the supposedly landmark ruling in Heller, I would like to see some evidence that the case will have a real impact for litigants other than just for the plaintiffs in that one case.
Of course, Heller might affect legislative activities in various ways; I do not mean to assert or suggest that Heller's impact is only to be measured by lower court victories for individuals seeking to assert gun rights based on Heller. But, to date, I have not seen reason to be seriously hopeful that there will be any significant lower court victories for gun-right advocates based on Heller.
October 8, 2008 at 03:37 PM | Permalink
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Not Heller based but there have been a couple positive rulings out of Ohio documented by Eugene Volohk over the past few weeks.
One invalidating a ban on carry in city parks and the other requiring a handgun be returned to someone aquitted at histrial.
Posted by: Soronel Haetir | Oct 8, 2008 4:03:53 PM
Have there been any cases that were not challenges to the kinds of laws that Heller itself expressly said were not impaired by it? One should not be surprised that no lower court issues a holding that contradicts the Supreme Court's express statement, whether dictum or not.
Posted by: Kent Scheidegger | Oct 8, 2008 5:25:51 PM
Kent Scheidegger wrote: "One should not be surprised that no lower court issues a holding that contradicts the Supreme Court's express statement, whether dictum or not."
Should one be surprised that an alleged conservative is apparently content with this state of affair so as to post a comment defending it? Let's face it. You don't really believe in a strong Second Amendment--no different from all the other rights. You believe in State power, period.
Posted by: DK | Oct 8, 2008 9:32:12 PM
DK, I don't read Mr. Scheidegger's comment as saying anything other than that he's not surprised that lower courts follow what the Supreme Court says, including its dicta.
This is what the Supreme Court said in Heller:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[FN26]
FN26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
From what I've read on this blog and others, most of the Heller-based challenges to restrictions on firearms have been challenges to the types of laws that Heller explicitly does not cast doubt on.
Regardless of what you think of the Supreme Court's work in Heller, the lower courts are bound by it.
Posted by: | Oct 9, 2008 10:54:49 AM
Scheiddeger's comment says what it says. If he were unhappy that the Second Amendment weren't being vigorously upheld, he would make it known via complaint. Instead, he is clearly content that the Second Amendment is a virtual nullity.
This has nothing to do with the fact of the matter, but with the politics of the matter. You think Scheiddeger does not loudly complain about district courts following Supreme Court dicta when it suits his political agenda to do so?
Posted by: DK | Oct 9, 2008 10:26:46 PM
i am an assistant federal public defender who recently lost a heller-based motion to dismiss an indictment charging my client with being a violent felon in possession of body armor, 18 usc 931. i'm taking the case to trial on a defense of justification, as my client had previously been shot (twice) and had his cousin murdered the night before his arrest. interestingly, the district court is taking the position that justification is unavailable as a defense. i'm curious to see how the ninth circuit interprets heller as applied to an "arm" that is purely defensive and thus well within the compass of scalia's reasoning.
Posted by: jerome matthews | Oct 9, 2008 11:41:07 PM
DK, you're an idiot. If you don't understand the discussion, ask some questions or butt out.
Posted by: | Oct 10, 2008 12:35:46 AM
One should not be surprised that no lower court issues a holding that contradicts the Supreme Court's express statement, whether dictum or not.
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I am looking for a list, with cites, of all"60" cases post Heller. Thanks.I am a professor/attorney and I have an article published a few years ago, pro 2nd Amendment rights.
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i am an assistant federal public defender who recently lost a heller-based motion to dismiss an indictment charging my client with being a violent felon in possession of body armor,
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You think Scheiddeger does not loudly complain about district courts following Supreme Court dicta when it suits his political agenda to do so?
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