A Year after Heller, Second Amendment Cases Move Fast

As this issue goes to press, we've just celebrated the one-year anniversary of the Supreme Court decision in District of Columbia v. Heller, which firmly established that the Second Amendment protects an individual right to arms. Now, a host of follow-up cases are moving fast, nearly guaranteeing prompt review of key issues related to that right. Here are some of the highlights. In June, the U.S. Court of Appeals for the 7th Circuit decided the case of NRA v. City of Chicago (consolidated for appeal with a companion case) and rejected challenges to handgun bans in Chicago and Oak Park, Ill. The cases sought to apply the Second Amendment to the states via the 14th Amendment. The Chicago cases and a New York case in the 2nd Circuit (Maloney v. Cuomo, which involves New York state's ban on possession of "nunchaku," an Asian martial arts weapon) wrongly followed post-Civil War precedent that refused to apply any provisions of the Bill of Rights directly to the states.

By doing that, the 7th and 2nd Circuits failed to conduct the type of 14th Amendment analysis that the Heller opinion said is "required" by later cases. This creates a split between those circuits' decisions and the 9th Circuit ruling in Nordyke v. King (see "ILA Report," July 2009). The NRA and other Chicago plaintiffs, as well as the plaintiff in the Maloney case, have all filed appeals to the Supreme Court, and it's very likely the Supreme Court will agree this fall to hear one or more of those cases.

Meanwhile, Washington D.C.'s city government keeps moving the goalposts on those who want the city to comply with the Heller decision. (See "Lawyers Take Aim," March 2009.) In an NRA-supported case, Dick Heller and other plaintiffs are challenging the District's burdensome gun registration requirements and its California-style ban on common semi-automatic firearms.

Both the NRA case and a companion case also attacked the District's use of the California handgun "roster"--a government-approved list that effectively bans the sale of non-listed handguns in California. Under the District's version of this scheme, guns that can't be sold in California also can't be possessed in D.C. This means D.C. residents can't possess certain guns just because manufacturers discontinued them before the California roster existed, or because a manufacturer got a black-finished pistol listed on the roster, but not an identical model with a two-tone finish.

Now, the District has issued "emergency" regulations that add guns on the Maryland and Massachusetts handgun rosters to its "approved" list, along with mechanically identical models and all pre-1985 handguns. This move is obviously intended to shut out the roster lawsuits. Even if the ploy is successful, the challenges to other parts of D.C.'s gun laws may survive; watch for more coverage of this and other Second Amendment cases in these pages, and at www.NRAILA.org.

Posted: 8/26/2009 10:45:19 AM