The Corner

How Will Heller Do in the Lower Courts?

Glenn Reynolds in the Northwestern University Law Review. An excerpt:

As scholars such as Adam Winkler, and the Solicitor General’s brief made clear, recognition of an individual right does not doom all gun control regulations to constitutional oblivion.[35]  Subsequent litigation offers an opportunity for litigants to educate lower courts about the choices they have and offer the guidance the Court declined to provide about crafting rules that implement the guarantee Heller recognized.  Scholars, too, have an opportunity to enter into the sort of dialogue with courts that both academics and judges agree is far too rare.

This will be especially true of cases involving state and local restrictions—laws whose constitutionality was not squarely presented in Heller.  Litigants ought to study and develop responses to Justice Breyer’s “interest-balancing” standard of review.  Likewise, those defending existing or proposed gun controls—especially those that do not go as far as the District’s did—have another opportunity to argue against categorical rules and presumptions of unconstitutionality.  In truth, this is probably the debate that we should have been having all these years: which regulations of private firearms are the “reasonable” ones that most people—including most of those who support an individual rights reading of the Second Amendment—can support.  At the very least, the Court’s interring of the “collective rights” or “military purpose” interpretation of the Second Amendment has cleared the way for that debate to begin.

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