Tag Archives: Heller

Heller’s Dicta?

A few weeks back, I highlighted the fact that there’s a surprising amount of congruence among the federal circuit courts in applying Heller. There’s uniformity on the methodological approach and on the constitutionality of a host of otherwise controversial public policies, like bans on assault weapons and high-capacity magazines. I also noted several substantive circuit splits, like the (lop-sided) split on “good cause” laws, the disagreement over whether undocumented immigrants fall within the Second Amendment’s scope, and the one about whether and how certain prohibited persons can raise as-applied challenges to firearm bans. There’s also a less substantive, but still interesting, circuit split: whether Heller’s carve-out for “presumptively lawful regulatory measures” constitutes dicta or not.

Common Cause, Clear Standards, and Heller’s Second Amendment

 

In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering is a nonjusticiable political issue.  Two factors seem key to the Court’s holding: the difficulty of finding a manageable standard to assess such claims and the thorny expansion of judicial review into an area of deep political controversy. Some of these same concerns permeate Second Amendment litigation; but, perhaps surprisingly, they gave the Heller majority no pause when it first announced an individual right to keep and bear arms.

How Does Heller Fit Into a Con Law Syllabus?

Jake Charles’ post yesterday noted that a great many foundational cases in the constitutional curriculum—Lopez, Printz, Curtiss-Wright, and Cruikshank, to name a few—involve gun laws. Of course, that doesn’t mean that they’re best understood as firearms law cases, or that the subject matter of the laws had much to do with the constitutional holdings (though perhaps in Curtiss-Wright it did). But Jake’s post does help illustrate some of the ways in which firearms law intersects with other areas of doctrine, even if does so sub silentio.

How Many People Were Ever Prosecuted Under the Laws Challenged in Heller, McDonald, and NYSRPA?

In Heller, McDonald, and now potentially in NYSRPA, the Supreme Court established Second Amendment principles that have been the basis for more than 1,000 Second Amendment challenges in the past ten years. Notably, each of the Supreme Court’s cases involved an outlier law—DC and Chicago were the only notable US cities with handgun bans, and New York’s law is such an oddity that the city itself has effectively disclaimed any interest in it.