Heller’s Precarious Situation

David Kopel

...In the Ninth Circuit, district judges or three-judge appellate panels sometimes rule in favor of Second Amendment rights, but no rights-affirming decision has survived en banc review. Thus, in a circuit that covers over 20 percent of the U.S. population, it is permissible to require that handguns in the home be locked up when not being worn — so that a person who is sleeping or bathing cannot have a functional handgun available. Likewise, a ten-day waiting period may be imposed on gun buyers who have just passed a background check and who already own another gun. The Supreme Court denied cert in cases challenging these policies, drawing dissent from Justices Thomas and Scalia in the first, and from Justice Thomas in the latter (Scalia having passed away by then). Most egregiously, California now effectively bans all handgun models that have debuted since 2013, via a mandate that new handguns microstamp their serial number in two locations on every unit of ammunition the handgun fires. Double-microstamping to California specifications is impossible; neither in a test lab nor anywhere else has anyone been able to comply with the law. A certiorari petition in a case challenging this law, Pena v. Horan, is currently pending before the Supreme Court. The Seventh Circuit and several others have upheld bans on magazines that hold more than ten rounds and on many common rifles, including the AR-15. The Supreme Court’s cert denial in a case challenging one of these laws, Friedman v. City of Highland Park, drew stinging dissents from Justices Thomas and Scalia, detailing how bans on common arms “typically possessed by law-abiding citizens for lawful purposes” violate Heller’s express language. The Second Circuit is worst of all. Anti-gun-rights decisions often have dissenting opinions in other circuits, but never in the Second. Consider the case currently before the U.S. Supreme Court, New York State Rifle & Pistol Association v. New York City. A New York City police regulation forbade residents to take their handguns out of the city. A resident of Staten Island could not practice at a range in New Jersey, attend a training class in New Hampshire, or shoot at a competition in Connecticut. Nor could she possess her handgun for protection when traveling in another state in compliance with that state’s laws. The Second Circuit said that the travel ban probably does not even raise a Second Amendment issue. Even if the Second Amendment were involved, said the circuit panel, the ban could be upheld based solely on a vague and unsubstantiated affidavit from a police official who speculated (with no evidence) about road-rage shootings. Normally, when faced with a limitation on a constitutional right, courts are supposed to consider whether there are “less burdensome alternatives” or “substantially less burdensome means” of achieving the government’s purpose. Courts must also consider whether the plaintiffs have rebutted the government’s evidence. And courts must not let the government get away with speculation or shoddy data — or no data at all. But when the Second Amendment is at issue, the Second Circuit jettisons the normal standards of judicial review...MORE