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November 24, 2008

What if no lower court judges participate in a "Second Amendment Revolution"

Thanks to How Appealing, I saw this article in the latest issue of the Harvard Law Record headlined "Profs: District of Columbia v. Heller is a 'Second Amendment Revolution.'"  Here is how the piece begins:

Calling the Supreme Court's decision in District of Columbia v. Heller a "Second Amendment revolution," Profession Cass Sunstein '78 declared in a panel discussion about the landmark Supreme Court decision on Tuesday, November 18.  Sunstein was joined by fellow HLS Professor Lani Guinier and Yale Law School Professors Akhil Amar and Reva Siegel. The panel was sponsored by the Harvard Law Review, whose November 2008 issue focuses on Heller, which struck down the District of Columbia's ban on handguns.  Sunstein stated, "For better or for worse, there has been a sea change with respect to the right to bear arms comparable to civil rights, sex discrimination, and gay rights."

With all due respect, Professor Sunstein, I blogged through a Sixth Amendment revolution with Blakely; I knew Blakely was revolutionary because lower courts started striking down all sorts of federal and state laws based on Blakely; this constitutional sentencing revolution had been a friend of mine. Professor, Heller is no Second Amendment revolution.

Pardon the weak effort to paraphrase Senator Lloyd Bentsen's famous debate line, but I continue to be annoyed and aggravated by all the aggrandizement of Heller and its so-far-inconsequential Second Amendment holding.  As I have suggested in prior posts, I will only believe Heller is important and revolutionary if/when lower court judges start striking down or limiting the reach of broad federal and state gun laws and restrictions based on its Second Amendment ruling.  Until then, I do not think many serious practicing lawyers should put much stock in lots of law professors opining about how significant the Heller decision is.

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

UPDATE:  Not minutes after finishing this post I noticed that Eugene Volokh has posted here on another lower court ruling that basically declares that Heller provides no impediment to federal efforts to prohibit and criminally punish any sort of gun possession by anyone addicted to any controlled substance.  How revolutionary!

November 24, 2008 at 10:34 AM | Permalink


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Heller more closely resembles Apprendi, which the lower courts almost universally ignored as well. Only when the Supreme Court said in Blakely, "and we really mean it," did the lower courts take note.

You can't really blame the lower courts. They've seen many other "sea changes" that fizzled -- the short-lived revival of the Tenth Amendment (National League of Cities) followed by the short-lived narrowing of the Commerce Clause (Lopez) being two examples. Scotus can be a tease sometimes.... showing a little leg, and then slapping the lower courts down after they take the bait.

Posted by: Anonymous | Nov 24, 2008 5:44:03 PM

Just as it took several years to get from Apprendi to Blakely to Booker, so it remains to be seen whether the promise of Heller will ever be realized, or whether it was just a flash in the pan. It will be up to defense lawyers (and law professors) to begin pushing "Heller challenges" to the state and federal gun laws thru the Courts. One early example is United States v. Knight, 574 F. Supp.2d 224 (D. Maine 9/4/08), where counsel raised an unsuccessful "Heller challenge" to 18 U.S.C. 922(a)(6), which makes it a crime to possess a firearm while subject to a demestic violence ("harrassing, stalking or threatening") restraining order. It will be up to defense counsel to appeal this case up the appellate chain. Who knows, in 2 years, "Knight v. U.S." might become the next "Blakely" or "Booker". Okay defense lawyers, let's get going here!

Posted by: Jim Gormley | Nov 24, 2008 7:08:12 PM

One would suppose that things could go on forever. We can wait for whatever "speed" as referenced in Brown v. Board of Education, to happen. Brown, after all has had some legs. Heller just happened. Maybe Heller is not watershed jurisprudence. I think that it is.

There are too many people being imprisoned for merely having a gun. At some point, society will think more than twice about sending someone to jail for merely having one. The crime for mere possession is ill-conceived. At at minimum, a statutory crime must be for flourishing or flashing. Not merely having one. Heller has legs. So does the Second Amendment. We must have patience. If they can take away your gun, and imprison you for having possessed one, the next thing they can imprison you for is for having your own thing.

Posted by: mpb | Nov 26, 2008 12:53:34 AM

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