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Tuesday, June 26, 2018

Ten Years After Heller

Today is the 10th anniversary of the landmark decision in District of Columbia vs. Heller where the U.S. Supreme court held the Second Amendment protects an individual right to possess a firearm "unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."  Frank Miniter, author of "The Future of the Gun" wrote at
Now a decade after the Heller decision pro-gun laws have swept through many states. A dozen states now even have “constitutional” or “permitless” carry for handguns. There are over 100 million gun owners in America and more than 16 million people have permits to carry concealed handguns (up from about 1 million in the mid-1980s). A recent United Nations’ Small Arms Survey found that American civilians now have 393 million firearms (46 percent of all of the guns in civilian hands in the world).
While lower courts have done their best to pretend the decision never happened, more and more Americans are exercising their right to keep and bear arms.  But as Jacob Sullum wrote at last month, the U.S. Supreme Court has been mostly silent since the 2010 case that overturned the Chicago handgun ban (McDonald vs. Chicago).  Sullum's article dived into a Vox article written by Duke law professor Joseph Blocher and Eric Ruben, a fellow at the Brennan Center for Justice, which makes the case that rather than ignoring Heller, the lower courts are simply applying the exceptions drawn by Heller.  Those "exceptions" from the decision is this part:
"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56."
Ruben and Blocher's narrative is also pushed by the gun ban lobby, like the op/ed in today's USA Today, written by Eric Tirschwell, director of litigation and national enforcement policy at Everytown for Gun Safety, and Mark Frassetto, senior counsel, Second Amendment litigation for Everytown.   That piece claims that policy makers and law makers must understand the Second Amendment is what "the courts have actually said it means" rather than what gun rights advocates say.  They claim:

...many obstacles remain as we work to strengthen and enforce our gun laws, Heller and the courts have made clear that the Second Amendment is not one of them.

Until SCOTUS agrees to hear another important case, we will continue to hear such talk.  That makes this year's off year elections very important.  It is possible that President Trump will get one more court appointment before the end of his first term.  Unless we have a pro-rights majority in the U.S. Senate, we won't get a new appointment confirmed.

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