10 years ago today the opinion written by the late Justice Antonin Scalia in DC v Heller confirmed what we had known in our hearts was the intent of the Founding Fathers. To wit, that the Second Amendment affirms an individual right to keep and bear arms for self-defense and other purposes. Since that time, many inferior courts have tried to parse Justice Scalia’s language in such a way as to negate the impact of the Heller decision. It is as if district and appeals court judges were treating Heller and the Second Amendment as Southern legislators treated Brown v. Board of Education and desegregation. In other words, they have tried to ignore it and continue on their unconstitutional ways. The sad thing is that the Supreme Court since the death of Justice Scalia seems inclined to be treated like a door mat on the issue.
There have been some wins such as the essential McDonald v. Chicago case which used the 14th Amendment to apply the Second Amendment to the states, Bateman v. Perdue in North Carolina which said said people needed to be able to defend themselves during times of emergency, Ezell v. Chicago which held that training was an essential part of the right to keep and bear arms, and the twin cases of Moore v. Madigan and Shepard v. Madigan which forced Illinois to adopt shall-issue concealed carry.
|Used with permission. Dick Heller and Amanda Suffecool with THE revolver.|
There are still more cases in the pipeline that will eventually make it to the Supreme Court. Whether the Court will decide to accept them depends upon when and if another vacancy occurs. If a Ginsberg or a Breyer die or retire, then I think you’d have the solid 4th vote to accept a case and probably would get a 6-3 or 5-4 win on the merits.
There are people we need to thank for working hard to obtain the win in Heller. First of all, Dick Heller who, of the all the plaintiffs in the original case, actually tried to register his .22 LR revolver with the District and was turned down. Then the legal team of Alan Gura, Clark Neely, and others at the Institute of Justice which assembled the plaintiffs and shepherded the case from start to finish. Special thanks needs to go to Robert Levy of the Cato Institute who personally funded the case. Of course, thanks to Justices Scalia, Kennedy, Thomas, Roberts, and Alito for their good sense in forming the majority in the case. Finally, and this may seem odd, but thanks needs to go to former DC Mayor Adrian Fenty whose hubris led him to appeal the Circuit Court of Appeals win for Dick Heller. Without that appeal, Heller would not have gone to the Supreme Court and all the subsequent cases probably would never have been heard. Sometimes your opponents create your luck.
We’ve won some and we’ve lost some. However, we still have a long way to go in our efforts make this enumerated civil right as respected by the courts as the First Amendment. I really believe as we broaden the gun culture we will achieve those goals.