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March 16, 2009

New York Times noticing Heller's lack of practical significance

I am pleased to see that the Old Gray Lady is taking note of the fact that the Supreme Court's supposedly revolutionary Second Amendment ruling in Heller has not had much of a practical impact.  Specifically, Adam Liptak has this new piece on Heller's impact for the New York Times, headlined "So Far, Few Ripples From Landmark Ruling on Guns."  Here are snippets:

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts.  They have upheld laws banning machine guns and sawed-off shotguns.  They have upheld laws making it illegal to carry guns near schools or in post offices.  And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”...

There is one arguable exception to this trend.  Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of “America’s Most Wanted.”  The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.

That provision may well have been unconstitutional as a matter of due process even before Heller, as it seems to impose a punishment before conviction.  But two courts have struck down the provision based partly on the fact that a fundamental constitutional right is at stake....

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

Regular readers will not be at all surprised by this news, since I have been noting and lamenting the lack of significance that Heller has had in lower courts.  (Just a few examples of my Second Amendment moaning appears in these posts: What if no lower court judges participate in a "Second Amendment Revolution"? and Has there been a single pro-gun-rights rulings in lower courts since Heller?.)

Relatedly, my commentary and complaints about the Supreme Court's work in its recent Hayes gun possession case (see here and here) has been based in part on my view that the Hayes case gave the Justices their very first opportunity to reinforce or repudiate the lack of attention and respect that Second Amendment rights and Heller has received from lower federal courts.  The fact that none of the Justices ever even mentioned the Second Amendment or Heller is its ruling provided strong evidence that not even the Justices who helped rescue the Second Amendment from the historical dust-bin had any serious problems with lower courts throwing lots and lots of dust on the rights that Heller purports to vindicate.

Some related Second Amendment posts:

March 16, 2009 at 05:13 PM | Permalink


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» Heller Meant What It Said from Crime and Consequences Blog
At the NYT, Adam Liptak has the scoop that lower court are uniformly finding that the Supreme Court's landmark Second Amendment decision, District of Columbia v. Heller, does not overturn the laws that it expressly said it did not overturn.... [Read More]

Tracked on Mar 16, 2009 6:18:47 PM


Doug you ran a post several months ago about Britt v State where Mr. Britt was trying to get his 2A rights back after having them restored and taken away again in North Carolina. Does anyone think that heller will help Mr Britt?

Posted by: anon | Mar 16, 2009 7:23:41 PM

Britt was argued on May 5 and still no decision. Obviously, something is going on inside the court.

bruce cunningham

Posted by: bruce cunningham | Mar 16, 2009 11:23:11 PM

I think that as a legal strategy folks ought to link elibibility to be accepted in a given state' national guard (the militia) to 2nd Amd rights to possess guns in one's home. If the wife who is found civilly guilty for slapping the husband has no disqualifying offenses for acceptance into Maine's militia for example--misdemeanors, felonies-- then the spouse abuse judgment should not be grounds for a criminal gun charge. In the past, opponents linked the militia component with gun rights. It is time that we gave that argument right back.

Posted by: mpb | Mar 17, 2009 10:35:41 AM

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