Monday, March 16, 2009
Heller's Impact on the Right to Bear Arms
D.C. v. Heller, last term's Second Amendment case in which the Court held that the Second Amendment protects an individual right to keep and bear arms, is not giving a lot of traction to gun-rights advocates in the lower courts, reports Adam Liptak in the NYT.
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.
These aren't the most appealing test cases, to be sure, and therefore may not represent the longer-term impact of Heller.
Liptak also reported on the state of Second Amendment incorporation. (The Heller Court did not decide whether the Fourteenth Amendment incorporates the Second Amendment to the states; it didn't have to: D.C. is not a state.) The case to watch is McDonald v. City of Chicago, now at the Seventh Circuit. The Constitutional Accountability Project filed an amicus brief arguing for incorporation via the Fourteenth Amendment Privileges or Immunities Clause, not the Due Process Clause. This approach is unlikely to come into play at the Seventh Circuit, but the brief is a place-holder for this argument at the Supreme Court.
Even if the Court rules the Second Amendment incorporated (by whatever clause), this may not result in much of a change. As Sandy Levinson is quoted in the article: "My own bet is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists."