ABA Journal Article on 2nd Amendment: Despite 2nd Amendment Cases, Firearms Codes Are Moving Targets

December 1st, 2010

Take a look at this lengthy piece in the ABA Journal about gun control laws post-Heller/McDonald, titled Despite 2nd Amendment Cases, Firearms Codes Are Moving Targets. In short, this article argues that notwithstanding Heller and McDonald, virtually all gun control laws are being upheld by the lower courts. Here is the gist of the article:

Proponents hailed Heller and McDonald as setbacks for gun control advocates. They predicted a shift in gun policy throughout the country. But so far it hasn’t happened that way. While there have been challenges throughout the country to local, state and federal gun laws, few have been successful. In fact, critics of the decisions say the cases have failed to provide a concrete framework to help lower courts determine the constitutionality of challenged gun control laws.

At least 260 challenges to state and federal gun laws have been filed since Heller was decided, according to Jonathan E. Lowy, director of the legal action project at the Washington, D.C.-based Brady Center to Prevent Gun Violence. “There have been challenges to virtually every gun control [law],” says Adam Winkler, a constitutional law professor at UCLA. “The one thing that unites most of these cases is that the challenged gun control law is upheld.”

This article echoes what I dubbed the “Epic Failure of Heller and McDonald.”

A few points worth focusing on in this piece, specifically about the weight of the Heller dicta.

Judges, too, have wondered whether the Heller statement should be treated as law or downgraded to obiter dicta. “There is some dispute over whether the language from Heller limiting the scope of the Second Amendment is dicta,” said Judge Anthony J. Scirica of the 3rd U.S. Circuit Court of Appeals at Philadelphia. In July the court upheld the federal law that punishes removal of a gun’s serial number.

Scirica said in United States v. Marzzarella, “Heller did not purport to fully define all the contours of the Second Amendment, … and accordingly, much of the scope of the right remains unsettled.”

In light of the Supreme Court’s failure to provide any guidance, the lower courts–in the words of this article–have been forced to “improvise.” My good friend, UCLA Law Prof Adam Winkler summed it up best:

“Some courts have applied strict scrutiny, some have applied intermediate scrutiny, and many have just avoided the question altogether,” says Winkler. “There has been wide disagreement on the proper standard or tests the courts should apply.”

Nelson Lund–under whom I studied and learned quite a bit about the Second Amendment–counters that it is quite normal for the Supreme Court to let the lower courts percolate, and we should not be concerned:

But Lund advises not to expect any new guidance from the court anytime soon. “The Supreme Court’s practice ordinarily after major decisions like this is to allow the issues to percolate in the lower courts,” he says. “I don’t know of any reason to expect the court to depart from that practice.”

I’m not so quite optimistic.

The article cites and quotes a bit from Duke Law Prof Joseph Blocher who wrote a very interesting article I read some time ago, titled Categoricalism and Balancing in First and Second Amendment Analysis.

In criticizing Heller, Blocher says Scalia used a categorical or formula-driven approach rather than the balancing test that was formerly used. In a 2009 New York University Law Review article, “Categoricalism and Balancing in First and Second Amendment Analysis,” Blocher adds that Scalia failed to identify underlying values to help lower courts understand how to apply the new approach when facing challenges to new laws.

“It’s a huge change in our understanding of the amendment, but not necessarily a huge change in what kinds of gun control laws are constitutional,” says Duke University assistant law professor Joseph Blocher.

“There’s a lot to be fleshed out. The court in Heller almost hits the reset button on the Second Amendment. Now, we need to figure out again what’s OK and what’s not OK.”