Assessing the Impact of Heller and McDonald

Ilya Somin agrees with Josh Blackman that the impact is going to be pretty limited. When looking short term, I tend to agree with that. I believe what will end up happening legally is that the status quo is largely frozen into place, with some of the very restrictive jurisdictions forced to relax their rules to a large degree. But in the end, I still think having a gun and carrying one in New York City will be more of a pain in the ass than doing the same in Phoenix. The judiciary will give them more leeway than we would like. However, the question becomes, if they can’t too seriously and substantively interfere with the right to the point of near destruction, will they bother? How will that alter the political dynamic? How will the next generation of federal judges look at the Second Amendment?

In the end, the Brady Campaign is right. It largely does take the extremes off the table. What they don’t realize is that’s far worse news for them than it is for us. It’s incumbent on us to expand the Heller majority. We’ve already missed two important opportunities for that. I agree with Professor Somin’s assessment that the two decisions we have speaks to the Heller/McDonald coalition of five justices to have breaking points.

4 thoughts on “Assessing the Impact of Heller and McDonald”

  1. One potential effect of Heller and McDonald that can’t be ignored is the normalization of gun rights. We have Constitutional Carry in Vermont, Alaska, and now Arizona–and Utah’s legislature will try to pick it up again in a couple of months. We have shall-issue permits in a majority of States, and States are gradually loosening gun laws.

    While Heller and McDonald may largely preserve the status quo, it should be remembered that part of the status quo is the loosening up of regulations.

    And this is a good thing! :-)

  2. “It largely does take the extremes off the table.”…

    Actually it only takes the extremes off the table on one end, the gun control side. They are stuck, as you note, with “annoying gun control” at the max both legislatively and judicially.

    However, as noted, nothing in the decisions prevents public opinion and legislative action to continue expanding the right incrementally state by state even if the judiciary doesn’t push the envelope for us.

    The courts, with their traditional deference to the legislature, are unlikely to overturn pro-gun changes on Brady ilk challenges. Particularly if they require a showing of fact, the reverse isn’t true.

  3. With great respect to Ilya Somin and Josh Blackman, the changes we are seeking (and likely to get) are extraordinary, at least in social terms. But they are speaking legal bits, so I’d like to offer some thoughts there…

    I don’t disagree with their concern over guidance to the lower courts (extensive quotations from Winkler aside), but think the issue is bigger than “Heller/McDonald did not state scrutiny”. I just think it is too soon to be worried about it.

    I don’t think anyone can say for certain that the current regime of “interest balancing” and standards analysis (analysis of scrutiny) favored by the lower courts will continue to comport with the “categorical analysis” used by the Supreme Court thusfar. They just don’t match and the lower courts are in-equipped to perform the categorical/somewhat originalist analysis used in Heller and McDonald (leading to Josh Blackman’s “disappointment” with both cases).

    BUT…We’re in an era where many 2A questions are going to be first-blush (post McDonald). This means nearly all cases asking the “big questions”, and those that challenge long-held legislative assertions of authority over arms are going to be broad, facial challenges even if argued in an as-applied fashion. This means that the means developed in the 20th Century for standards analysis – only “perfected” since about 1970 – are inefficient. They all rely on standards that rely on precedent. Which does not exist. Oops.

    Look back to the Civil Rights fights. They started the same way: categorical analysis that eventually led to precedent and “standards” through which lower courts could judge individual cases. But until that happened, the lower courts were awash with clashing and inconsistent opinions.

    Right now, saying that 2A requires “strict scrutiny” means nothing. We have yet to define the core of 2A (in a legal sense, post Heller). And what of ancillary activities like sales and training? Do these activities merit enhancement like those of books stores, porn shops and abortion clinics?

    “Sensitive Places”? Where? When? Conditions?

    You get the idea.

    We need time to sort all this out. Hell, it took three decades to get it done in the Civil Rights Era. The SAF and Gura are laying down the pieces to settle our questions much, much faster. But it is work that still needs doing.

    Heller/McDonald could not set a standard for analysis, because that standard simply had nothing for it to be applied against. We’ll have some guidance in the next year or two, and things will speed up from there. At that point, the lower courts will fill in the blanks.

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