What might 2009 have in store for . . . Second Amendment jurisprudence?

Due to the Supreme Court's remarkable work in Heller (and all of the pre- and post-ruling buzz), one could call 2008 the most eventful year for the Second Amendment since its ratification.  Yet, as regular readers know, I fear that, even with the bold work by the Justices in Heller, the story of the modern Second Amendment now still remains a tale full of sound and fury, signifying nothing.  Indeed, because the post-Heller jurisprudential landscape will begin to take shape over the next few months, I consider 2009 a make-or-break year for the Second Amendment.

Intriguingly, the Supreme Court has a Second Amendment sleeper case in Hayes, which concerns a federal prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence.  Though the oral argument in Hayes did not mention the Second Amendment, I am hopeful that the Court's opinion will at least make note of Heller.  Similarly, though lower courts are now relying heavily on Heller dicta to reject Second Amendment claims, I am hopeful that at least a few lower court judges will soon have the courage to seriously work through the implications of the constitutional principles stressed in Heller.

Meanwhile, the Second Amendment may have gotten an unexpected shot in the arm as a result of Plaxico Burress unexpectedly shooting himself in the leg.  Few people — save perhaps NYC Mayor Bloomberg and those who like to root against the New York Giants — seem eager to demand that Plaxico serve a mandatory 3½ years in prison just for carrying a gun in NYC for self-protection.  Plax's lawyers may come to see (perhaps with the help of the NRA and other gun rights activists) that the strongest legal argument for avoiding this mandatory prison term may be rooted in the Second Amendment.

Some recent related Second Amendment posts:

• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• Still more proof that federal courts have no real interest in gun rights
• An argument that the Second Amendment and Heller should help Weldon Angelos
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• District Court rejects Second Amendment claim from misdemeanant
• Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress