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Professor Adam Winkler on the Real Impact of the Heller Case

UCLA Law Professor Adam Winkler (a former student, I am honored to note) has a very enlightening piece over at The Huffingtonpost on the consequences of D.C. v. Heller. Winkler reports:

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing “straw” purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

Since Heller, its Gun Control: 60, Individual Right: 0.

Before the Supreme Court’s decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.

About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose.

The basis for most of these lower court rulings upholding gun control is a paragraph near the end of the Supreme Court’s decision that, at the time, seemed like a throwaway. The Supreme Court wrote that “nothing in our opinion should 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 on the commercial sale of arms.”

What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.

“I would have preferred that that not have been there,” says Robert Levy about this laundry list of Second Amendment exceptions. Levy, executive director of the CATO Institute, which funded the Heller litigation, believes that paragraph in Scalia’s opinion “created more confusion than light.”

But to a die-hard gun rights advocate, the problem is exactly the opposite: the paragraph shed too much light. It revealed that the Supreme Court believes that almost all gun control measures on the books today are perfectly lawful — a message that hasn’t been lost on the lower courts.

Hardliners in the gun rights community cannot help but be disappointed with their long-awaited triumph.

Fascinating. It will be interesting to see if a) this trend in the lower courts continues and b) any of these cases make their way up to the Supreme Court for further “clarification.”

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.