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November 10, 2008

Is anyone (other than me) discussing the apparent insignificance of Heller?

I noticed over at The Volokh Conspiracy reports on a lecture and a symposium focused on the Heller Second Amendment case.  It seems that both events take as a given that Heller is an important decision.  But activity today at the Supreme Court has me wonderign again if the Heller decision means anything consequential at all. 

As previously noted here, the Justices heard oral argument today in US v. Hayes, which concerns the interpretation and reach of a federal gun law — 18 U.S.C. § 922(g)(9) — which criminalizes any and all gun possession by anyone previous convicted of the wrong kind of misdemeanor.  If Heller really articulated and safeguarded some kind of meaningful constitutional right under the Second Amendment, at least some of the argument in Hayes should have been about the scope of constitutional gun rights and/or whether the doctrine of constitutional doubt should limit the application of the gun possession crime set forth in § 922(g)(9).  However, a quick scan of the oral argument transcript in Hayes reveals that neither Heller nor the Second Amendment was mentioned at all.

As regular readers also know from this recent post, we have not yet seen one single lower federal court ruling that gives any meaning or force to the Second Amendment rights purportedly championed in Heller.  Indeed, in light of the failure of the Justices today and lower courts to even consider the import or impact of the Second Amendment in various settings, I am inclined to ask a legal variation on a classic philosophical riddle: "If a constitutional right falls in the courts and no judge pays it any attention, does the right make any difference?"

Some recent related Second Amendment posts:

November 10, 2008 at 03:58 PM | Permalink


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It's going to take time, honestly. And I fully expect the arena you watch most to take the longest if ever to come around.

Several Chicago area suburbs dropped their gun bans rather than have to pay to litigate (though I figure most of that is a ploy to get Chicago to pay instead and hope for a favorable ruling). Also the similar case against San Francisco public housing, which since it was filed just after Heller is going to take a long time to wind through the courts.

A more interesting case of a court taking notice of Heller was the Suffolk case mentioned on the VC a few days ago on the VC.

I'm honestly not sure whether the Nordike case is particularly well positioned to make a difference, so shrug on that one.

As for Hayes like you said before any 2A issues may well have not been properly preserved. Would be interesting to have a similar case where it was explicitly preserved or even better another Emerson.

Posted by: Soronel Haetir | Nov 10, 2008 4:29:00 PM

Heller won't make much of a difference, because of its focus on law abiding people owning ordinary guns for self-defense purposes. Municipal ordinances will fall in declaratory judgments.

The right to carry in businesses by proprietors, and the validity of limitations on armed self-defense are more likely to make law than any sentencing cases.

Posted by: ohwilleke | Nov 10, 2008 4:42:17 PM

Take a look at page 18 of the transcript:

JUSTICE SCALIA: I don't think anybody would assume that. Indeed, there are some who assume that you -- you cannot prevent the owning of a firearm for a mere misdemeanor, as opposed to a felony.

Posted by: Anon | Nov 10, 2008 4:54:51 PM

Anon: I saw that passage and it confirms the lack of significance given to Second Amendment rights. Could you imagine such hesitation from any of the Justices if the question was whether federal law could prevent the writing of a book (First Amendment) or avoid compensating a taking (Fifth Amendment) for a mere misdemeanor?

The willingness of the author of Heller to suggest its rights can possibly be eliminated for a mere misdemeanor revelas that nobody is really committed to a serious and robust Second Amendment right. It's a shame (though not really a surprise) that debate over this right is really about public policy rather than about true individual freedoms.

Posted by: Doug B. | Nov 10, 2008 8:34:51 PM

As a student of this case I can't help but think, after reading the transcripts from today that we will see Hayes win, 5 to 4. In reading the text in context I felt that Justice Scalia made some very stong points and was in Hayes's corner. I also felt that Justice Kennedy made an analogy which I thought was interesting and as well put himself in Hayes's corner. As strange as it sounds, of the 5 I feel will fall to Hayes, I was most taken back with Justice Alito. His comments were very different then I had expected.

With this said I believe the ruling will be 5 to 4 in favor of Hayes. Might I add, as it should be.

Posted by: JW | Nov 10, 2008 9:07:19 PM

ohwilleke wrote: "Heller won't make much of a difference, because of its focus on law abiding people..."

Ah, yes, the metaphysical "law abiding person."

Posted by: DK | Nov 10, 2008 11:50:56 PM

Doug. I think you are asking the wrong philosophical question. The right question is: If you hear someone in the forest yelling "timber" did the whole forest really fall?

Posted by: Daniel | Nov 11, 2008 12:12:46 AM

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