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June 28, 2010

The likely state criminal litigation impact of McDonald and state applications of the Second Amendment

Even before having a chance to skim the Supreme Court's important McDonald ruling concerning the application of the Second Amendment to the states, I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms. 

As regular readers of this blog know, the vast majority of persons who have sought to expand and extend the Supreme Court’s landmark Second Amendment ruling in Heller in the last two years have not been folks like Otis McDonald, the lead plaintiff in the case decided by the Supreme Court today.  Rather, the most common Second Amendment litigant has been a federal defendant charged with some form of gun possession crime. Though these litigants have not yet had much success when pressing claims that Heller precludes or impacts federal efforts to criminalize certain problematic uses and possession of firearms, they have forced lower federal courts to grapple with the reach and limits of Second Amendment rights in a variety of criminal justice settings. 

Now that the Supreme Court has clarified that the Second Amendment applies to the states, there are likely a significant number state criminal defendants who will now start urging state courts to decide that the Second Amendment should block some state prosecutions based on gun possession and use.  And the many divisions in the McDonald opinion probably ensures that lower courts will be divided when ruling on these issues.

June 28, 2010 at 10:32 AM | Permalink


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I doubt that lower courts will be any more divided on the felon-in-possession prohibitions after McDonald than they were before -- which is to say that they will continue to almost uniformly reject the felons' arguments.

The key passage is this: "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill'...We repeat those assurances here."

Defendants were losing almost all their cases after the Court said it once in Heller. Now that it's been repeated in McDonald, one must think defendants will be doing even worse, if possible.

Posted by: Bill Otis | Jun 28, 2010 1:08:02 PM

I wonder though if this sentence from last paragraph gives some play: "In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense."

Posted by: PD | Jun 28, 2010 1:38:55 PM

PD --

Have at it!

Posted by: Bill Otis | Jun 28, 2010 1:50:41 PM

I find it increasingly difficult to reconcile the Court's dicta in Heller with the Court's interpretation of the Second Amendment. In McDonald, the Court clearly says the right to keep and bear arms is fundamental. Most laws restricting fundamental rights are subject to strict scrutiny. In my opinion, a law restricting a felon's right to possess a firearm in his home for self-protection should be unconstitutional under that level of scrutiny. However, I recognize that lower courts are unlikely to seriously analyze the issue in light of the Court's statement.

Posted by: Amanda | Jun 28, 2010 3:07:46 PM

I don't expect much to come of this for felons or even violent misdemeanants. Possibly some play in requiring a jury trial but even that is going to take luck.

Much more likely is a few meaningful changes in the Boston DC corridor and not a whole lot more. Most of the country is already far more friendly towards gun owners than SCOTUS is ever going to mandate.

Posted by: Soronel Haetir | Jun 28, 2010 3:08:37 PM

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