pageok
pageok
pageok
Was Heller Insignificant?

So claimed the New York Times last week, relying heavily on UCLA law professor Adam Winkler. In an article in today's The New Ledger (a on-line newspaper and news aggregator that started publication in January), I argue that the Times missed many instances in which Heller has had a direct and significant impact--in getting rid of oppressive gun laws, or in requiring the fairer enforcement and application of others.

MarkJ (mail):
Question: What is "insignificant" to the New York Times?

Answer: Anything that contradicts the New York Times' Weltanschauung.
3.26.2009 1:59pm
Snaphappy:
It took me until halfway through the last sentence before I realized you weren't talking about Heller Ehrman. I suppose that's what I get for visiting here right after Above The Law.
3.26.2009 2:08pm
frankcross (mail):
Well, you make the very important point about selection effects -- that sure losers in the wake of Heller will settle rather than proceed to an outcome. And easy cases may yield unpublished opinions.

However, the article still contains considerable truth. The importance of a Supreme Court decision is found in how it is interpreted by lower courts. It stands for something on the facts before the Supreme Court, but the key to the decision is how far lower federal courts expand its reasoning to control cases beyond those facts. And they apparently aren't doing it.

The argument that Heller matters in a way unseen in published opinions is true of every Supreme Court decision. Yet the significant other decisions also produce considerable lower court federal victories with published opinions. So as compared with other major Supreme Court decisions, Heller appears to be shooting blanks.
3.26.2009 2:09pm
KenB (mail):
The Times's take is a combination of wishful thinking and an attempt to shape public attitudes so as to become a self-fulfilling prophesy. It's what should be true, because it's what the Times wants to be true. Therefore, the Times says it's true, truth being whatever serves the interests of the Times.
3.26.2009 2:11pm
Anderson (mail):
When certain people wax perpetually hysterical about losing their gun rights, others of us can be forgiven for supposing that Heller didn't actually change much.
3.26.2009 2:11pm
This is my weapon, this is my gun:
When certain people wax perpetually hysterical about losing their gun rights the illusory danger of firearms in the hands of non-violent law-abiding citizens, others of us can be forgiven for supposing that Heller didn't actually change much being angry about the constant pressure to erode the constitutional rights of gun owners.
3.26.2009 2:18pm
Anderson (mail):
Present company excluded, obviously.
3.26.2009 2:27pm
Avatar (mail):
It didn't change much because, in most of the country, gun laws are completely compatible with Heller and the individual-rights interpretation of the Second Amendment. Only in those places where the Second was taken to read "individuals can be prohibited from owning guns after all" could it possibly have had any affect.
3.26.2009 2:30pm
NaG (mail):
Heller completely obliterated gun laws in the District of Columbia, and is likely to go on to do the same to gun laws in places like Chicago. Is that insignificant? What if that happened in NYC? What would the Times say then?
3.26.2009 3:08pm
RKV (mail):
Heller has NOT completely obliterated DC's gun laws. The city is back to it's old tricks with registration, model limitations and so on. Wish you were right NaG, but pay attention to what DC is doing lately.
3.26.2009 3:14pm
Paper Nuncio:
David,

Typo at the end of the article:


in which he argued that gun controls should be upheld if there are "reasonable," and that anything short of banning all guns is reasonable.
3.26.2009 3:17pm
pintler:

Heller has NOT completely obliterated DC's gun laws. The city is back to it's old tricks with registration, model limitations and so on.


Not to support DC's actions, but the step up from unarmed to armed with a revolver adds a lot more utility than the step from revolver to auto de jour does.

From the point of view of someone in Idaho with a nice class 3 collection, Heller was a no-op. From the point of view of the nice but poor and frail pensioner in a bad neighborhood in DC, it's a huge improvement.
3.26.2009 3:35pm
RKV (mail):
pintler, I wish I had a nice class 3 collection, and Idaho is a nice place, but I'm in the PRK, which has it's own set of unconstitutional gun laws. As to what current DC gun laws require, Alan Gura doesn't think they are constitutional...
http://www.dcguncase.com/blog/
3.26.2009 4:03pm
Mikeyes (mail):
How long has it been since has Heller been adjudicated?

It seems to me that the more important tests are still to come and are slowly wending their ways through the courts and legislatures. Brown vs. Board of Education was decided in 1954 while the more important Civil Rights actions and legislation took place a lot later on.

(Except for my family's high school in Nashville - Father Ryan, which integrated in 1954 by fiat from the bishop.)
3.26.2009 5:22pm
luagha:
I'm waiting for a challenge to 'may issue' concealed carry which inevitably results in only the wealthy/connected receiving concealed carry permits. It seems that some of the Heller wording was put in place specifically to challenge it... the "enforced in an arbitrary and capricious manner" statement.
3.26.2009 5:50pm
NaG (mail):
RKV: I agree with you that D.C. is now trying to come up with new laws that go as far as they think they can get away with. They are probably even unconstitutional, as Gura argues. But D.C. was forced to redraw everything from scratch, and face some opposition.

But the real importance of Heller was to set the stage for litigation of gun rights. Certainly, the point of Heller was not to establish the precise test for gun regulations...that will apparently be done on a case by case basis. But now there are cases, where there were none before. And the wholesale rejection of the "collective rights" theory of the 2d Amendment means that courts are going to have to come up with a different way to analyze these cases. While I wish the majority had been brave enough to simply set forth a strict scrutiny, or "heightened" scrutiny, standard, they appear willing to let litigation play itself out and give the Court some choices to mull over first. That changes the playing field quite a bit, legally.

I wonder, when the next gun case comes along (probably involving whether the Incorporation Doctrine applies to the 2d Amendment), whether the dissenters in Heller will abide by stare decisis. I'm thinking they will not.
3.26.2009 5:58pm
zippypinhead:
Dave, you of course make valid points in the New Ledger piece. BUT methinks you're shooting low (pun intended). Let's see -- what media source is more likely to convince the largest number of readers, the New York Times, or some "on-line newspaper" that's less than 6 months old and isn't even currently swept by Google News?

Pro-Second Amendment scholars should be clamoring to get Op Eds refuting the biased reporting published in major papers - or at least sending in letter to the editor calling out the reporter for inaccuracies. At minimum, cut the length of your piece in half and send it in to the NYT as a letter to the editor. You'll get 1,000 times the eyeballs (and I may be underestimating by a couple orders of magnitude).
3.26.2009 6:07pm
PersonFromPorlock:
Heller isn't much - yet - but as several commenters have noted, it sets the stage for further developments. But if the SCOTUS ducks those developments as determinedly as it did Second Amendment cases after Miller, Heller will turn out to be not much at all.

For the moment I'll stick with my original summary of Heller: "The right to keep and bear arms is an individual right. So?"
3.26.2009 8:54pm
PersonFromPorlock:
zippypinhead:

Pro-Second Amendment scholars should be clamoring to get Op Eds refuting the biased reporting published in major papers - or at least sending in letter to the editor calling out the reporter for inaccuracies. At minimum, cut the length of your piece in half and send it in to the NYT as a letter to the editor. You'll get 1,000 times the eyeballs (and I may be underestimating by a couple orders of magnitude).

Those of us who've tried this approach have discovered it's like peeing in the swimming pool: it gives you a brief warm sensation and nobody notices.
3.26.2009 8:59pm
Anderson (mail):
Possibly my viewpoint is biased by my residing in Mississippi, where gun rights don't appear particularly endangered. The only step backward I can recall in the past few years is that I can't buy a rifle at Wal-Mart any more.

You denizens of liberal hellholes obviously need to come live in the Magnolia State.
3.26.2009 9:42pm
Joseph Slater (mail):
Joseph Heller was a very influential author. And while Catch-22 was great, several of his other novels were . . . . oh, wait.

As to the Heller Second Am. case, isn't Mikeyes, above, clearly right?
3.27.2009 11:43am
ohwilleke:
The NYT is right. Heller is almost a one off. It watered down one D.C. law, but not ended the ability of D.C. to have gun control laws in some form. Dicta in Heller largely validated every other federal gun law. Without a reversal of prior SCOTUS holdings that the Second Amendment is not incorporated under the 14th Amendment, it won't change the law in Chicago or any other U.S. state. Philosophically it is important, but practically, reasonable regulation swallows the individual right.

Expressly non-precedential Bush v. Gore has had a much greater impact.
3.27.2009 8:28pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.