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November 20, 2008

The legal backstory of Heller

Over at Reason online, one can now find this lengthy article telling the backstory of the case that resulting the the Heller ruling.  The article is titled "How the Second Amendment Was Restored: The inside story of how a gang of libertarian lawyers made constitutional history."  Ultimately, I share Ilya Somin's view that this article overstates the ultimate importance and significance of Heller.  But this article is still a must-read as a piece of modern legal history, and also for a useful set of lessons for anyone seriously committed to impact-oriented constitutional litigation.

Some related posts on the Heller's (lack of) importance:

November 20, 2008 at 10:25 AM | Permalink


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I read the "lengthy article". I thought it quite good. There is a notion floated about that Heller is a case without a future. I think not. The cases that Second Amendment protagonists should advance, with the thought of getting somewhere, are those involving litigants (defendants) with misdemeanor convictions or civil cases involving domestic violence. I suggest that we latch onto the militia aspect of the Second Amendment. If a person, not a militia member i.e., National Guard, is qualified to serve in the state militia, then that person should have the unqualified right to own a gun--irregardless of a misdemeanor conviction or spouse abuse civil order of protection. The Second Amendment should trump any state or federal law to the contrary. Thus, the wife that slaps the husband and gets slapped with an adult abuse order of protection, who would still be elibible for acceptance into the Maine National Guard, cannot be prosecuted under any law, state or federal, for possession of a weapon. A good test case would be a person prosecuted for possession of a big knife and not a machine gun.

I believe that Heller has legs.

Regarding the machine gun. When someone tells me that the people have no right or legitimate need for machine guns I think back on the LA riots after the Rodney King case. I recall the national television clip of that business owner on the roof of his property with a machine gun. He was standing down the rioters. His building, his property, his livelihood, his life, were thus protected by his flourishing a machine gun at the rioters. This was all in a modern setting. We are not talking Founding Fathers era-- there was no Frontier (that is a capital "F"), no Indians, no British are coming theme, and no Revolutionary War happening. The cops were not there to protect this guy. The army was not there. No person stood between the rioters bent on burning his business property to the ground with him in it. It was he and his machine gun. To paraphrase the Second Amendment: the security of a free state is dependent upon a well regulated militia. The right of the people to bear arms shall not be infringed. If I am eligible for the militia (not a felon, not a traitor under Maine law) then I should have the right to keep and bear arms.

Posted by: mpb | Nov 21, 2008 4:29:32 AM

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