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June 27th 2008

Substantial Victory for American Gun Owners?

The following post was written by Daniel L. Schmutter, an attorney in West Orange, New Jersey. He filed an amicus brief on behalf of Jews for the Preservation of Firearms Ownership in support of the respondent.

Having submitted an amicus curiae brief on the side of Respondent Heller, I cannot help but conclude that today’s decision represents a substantial victory for American gun owners. Yet, to read the press releases of various anti-gun interest groups and government officials, you would think that the other side won today.

This is because the majority opinion clearly provides room for the survival of gun laws which do not offend the fundamental self defense purpose of the Second Amendment. Thus, as with other rules of law, the real meat and potatoes, so to speak, will be found in the many lawsuits to come. Accordingly, the anti-gun groups have already taken up the gauntlet and broadly asserted that today’s decision affirms the validity of “reasonable” efforts by governments to control crime. Well, not so fast.

What the decision does recognize is that the right to keep and bear arms is not absolute. So far that’s nothing controversial. Notwithstanding the fact that some folks would have liked a decision that swept away gun laws en masse, I doubt that anyone seriously following this issue expected that there was any likelihood of that. Instead, those watching this issue were keenly interested in the scope of the right and the standard of review to be applied. Well, we got some information on both of those.

For instance, we know that outright handgun bans are now off the table (federally, at least — for now). We also know that self defense is a key lynchpin of the right to keep and bear arms. We also know that, at some level, the types of weapons protected by the Second Amendment bear some relationship to the extent to which they are in common use.

Similarly, we know that the Court views certain types of laws as likely valid, such as laws prohibiting possession of firearms by felons or the mentally ill, or in school and government buildings. Yet these are hardly the laws that proponents of gun control are usually talking about when they refer to “reasonable” laws. Typically, proponents of “reasonable” gun laws mean something far more aggressive. Thus, when anti-gun groups hail today’s decision as affirming the right to enact “reasonable” gun measures, they take a giant leap into what is truly a massive area of uncertainty. The vast chasm between “ban on handguns” and “ban on felons with handguns” is fertile ground for decades of litigation.

To be sure, Heller represents a very good decision establishing a strong right to keep and bear arms. Yet it will require years of litigation to define with any firm degree of utility for either side. What is clearly true from the majority opinion, however, is that no matter what happens, there will be a substantial realm that will always remain solidly in the political arena. Considerable room has been left for presumptively valid gun laws, and both sides will have plenty to keep them busy going forward.


The Liberty Crew

Related articles -
The Pros and Cons of Heller
More 2nd Amendment litigation expected

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