Diary

Recent Supreme Court decisions are the beginning—not the end—of Second Amendment court fights

A Washington Post article points out that while gun rights supporters expected to see the victories start rolling in following the Supreme Court rulings in Heller and McDonald, the other side is the one, in fact, winning in the lower courts.

This is disappointing, but not shocking.

The McDonald decision incorporated the Second Amendment to the states, while Heller’s biggent win was that the Second Amendment protects an individual right.  The importance of this cannot be over stated.  Prior to Heller, nearly every circuit court of appeals had ruled the Second Amendment to be a collective right. 

But the Heller Court chose to go no farther.  Specifically, the majority wrote (on page 2):

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.

The decision, unfortunately, gives anti-gun judges more than enough wiggle room to rule almost any gun control law—short of a total gun ban—constitutional.

Gun Owners of America executive director Larry Pratt noted on the day of the Heller ruling that the opinion was mixed.

Dicta in this case implies that, in the future, courts might go further than the Constitution permits in upholding some gun restrictions.  Nevertheless, we are pleased that the Court has so clearly stated that individuals, apart from any membership in a militia, have the right to own and use guns for self-defense.”

So we shouldn’t be surprised when the other side wins some battles in the lower courts, many of which are filled with hardcore anti-gunners.  The bottom line is we’ve come a long way, but we have a long way to go to see gun rights get the protections the Second Amendment demands.