Thursday, March 19, 2009

2nd Amendment Ruling Shooting Blanks, So Far, New York Times Correspondent Says

In a February posting I applauded the lack of success to date of the movement to allow guns on college campuses and provided links to previous postings on that subject and on the Supreme Court's mistaken conclusion nine months ago that the U.S. Constitution's 2nd Amendment codified an individual right to kill.

I draw additional encouragement from a March 17th report by New York Times Supreme Court Correspondent Adam Liptak that in terms of overturning gun-control laws, the Heller decision is "firing blanks."

Liptak reports that in deciding more than 80 cases after the Supreme Court's decision, lower federal courts have, in the words of Adam Winkler, a University of California law professor, “not invalidated a single gun control law on the basis of the Second Amendment since Heller.”

Liptak's summary of the laws the courts have upheld is impressive: "The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal immigrants and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons."

In a not unmerited dig against gun advocates, Winkler wrote in the UCLA Law Review “So far, the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.” This, of course, supports the view of critics right after the Heller decision that it had left so many legal loose ends that it would prove a bottomless resource for litigators.

Liptak observes that one question the Supreme Court left open is whether the 2nd Amendment, as interpreted in Heller, also applies to the states. Most legal scholars suspect that it does, but Liptak believes that state courts probably have to follow older decisions until the Supreme Court rules on that issue specifically.

Liptak concludes with this sage advice from Sanford Levinson, a law professor at the University of Texas: “My own bet is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

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