Heller's future in the lower courts

Northwestern University Law Review

Volumn 102, Issue 4, 2008, Pages 2035-2044

  Reynolds, Glenn H ^a   Denning, Brannon P ^b  

^a UNIVERSITY OF TENNESSEE   (United States)

^b SAMFORD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 57649171580     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (54)

1. 128 S. Ct. 2783 (2008).
2. See Brannon P. Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 CUMB. L. REV. 961 (1996) (criticizing the caselaw citing United States v. Miller as authority for rejecting an individual rights interpretation).
3. 514 U.S. 549 (1995).
4. Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 475 (1995) (footnote omitted).
5. 307 U.S. 174 (1939);
6. see, e.g.. Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (stating that the Second Amendment was designed to foster "the efficiency of the well regulated militia . . . as necessary to the security of a free state");
7. United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) (stating that the Second Amendment "was not adopted with individual rights in mind").
8. See Brannon P. Denning & Glenn H. Reynolds, Telling Miller's Tale A Reply to David Yassky, LAW & CONTEMP. PROBS., Spring 2002, at 113 (discussing the holding in Miller in light of the briefs and arguments).
9. An "unorganized" militia, by statute, designates able-bodied males within a certain age range as members. Unorganized militia are contrasted with the "select" militia of a state, which correspond roughly to the state's National Guard. See, e.g., 10 U.S.C. § 311 (2000) (classifying the able-bodied male population aged seventeen to forty-five as the unorganized militia of the United States). State rales are similar, except that many states include women.
10. See, e.g., OHIO CONST, art. IX, § 1 (1994) (authorizing "all citizens" to serve);
11. KAN. STAT. ANN. § 48-904(e) (1983) ("'[Unorganized militia' means all able-bodied male and female persons between the ages of 16 and 50 years.");
12. OR. REV. STAT. § 396.105(3) (1994) ("The unorganized militia shall consist of all able-bodied residents of the state between the ages of 18 and 45 who are not serving in any force of the organized militia or who are not on the state retired list and who are or who have declared their intention to become citizens of the United States; subject, however, to such exemptions from military duty as are created by the laws of the United States.").
13. See Denning, supra note 2, at 981-87 (discussing early cases applying Miller).
14. See, e.g., Cases, 131 F.2d at 923;
15. Tot, 131 F.2d at 266; Denning, supra note 2, at 981-87 (discuss-ing Cases and Tot).
16. But see District of Columbia v. Heller, 128 S. Ct 2783, 2814 (2008) ("It is entirely clear that the [Miller] Court's basis for saying that the Second Amendment did not apply was not that the defendants were 'bear[ing] arms' not 'for . . . military purposes' but for 'nonmilitary use' . . . . Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection . . . . Beyond that, the opinion provided no explanation of the content of the right." (citations omitted)).
17. See Denning, supra note 2, at 988-98 (discussing lower court cases).
18. See id. at 997-98 (discussing Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)).
19. 270 F.3d 203 (5th Cir. 2001).
20. 478 F.3d 370, 395 (D.C. Cir. 2007) ("[T]he Second Amendment protects an individual right to keep and bear arms."), aff' d sub nom. District of Columbia v. Heller, 128 S. Ct 2783 (2008).
21. United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the Violence Against Women Act as beyond Congress's commerce power).
22. See Brannon P. Denning & Glenn H. Reynolds, Rulings and Resistance: The New Commerce Clause Jurisprudence Encounters the Lower Courts, 55 ARK. L. REV. 1253 (2003) [hereinafter Denning & Reynolds, Rulings and Resistance] (discussing lower court cases following Morrison);
23. Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of'Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?, 2000 WIS. L. REV. 369 [hereinafter Reynolds & Denning, Constitutional Revolution].
24. 545 U.S. 1 (2005) (upholding the application of the Controlled Substances Act to noncommercial marijuana grown and possessed for local, medicinal use under state law).
25. Several of these challenges are discussed in Reynolds & Denning, Constitutional Revolution, supra note 15.
26. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), aff'd sub nom. United States v. Morrison, 529 U.S. 598 (2000).
27. See Denning & Reynolds, Rulings and Resistance, supra note 15 (describing these as-applied challenges).
28. District of Columbia v. Heller, 128 S. Ct. 2783, 2816-17 (2008). A footnote added, for good measure, that the Court's list of "these presumptively lawful regulatory measures . . . does not purport to be exhaustive."
29. Id. at 2817 n.26.
30. See id. at 2821 ("[S]ince this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field . . . .").
31. Brief of the United States as Amicus Curiae at 8-9, District of Columbia v. Heller, 128 S. Ct 2783 (2008) (No. 07-290), available at http://www.scotusblog.com/wp/wp-content/uploads/2008/01/us-heller-brief-1-11-08. pdf (recommending remand for analysis using intermediate scrutiny as the standard of review).
32. Whatever one thinks of the substance of his test or how well that test implements the right guaranteed by the Second Amendment, Justice Breyer at least described in some detail the approach he would take. See Heller, 128 S. Ct at 2850-53 (Breyer, J., dissenting) (describing the "interest- balancing" approach he would employ in Second Amendment cases).
33. See supra note 20 and accompanying text.
34. United States v. Craikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amend-ments to the states).
35. For Heller's discussion of Cruikshank and its continued significance in light of the Court's incorporation of most provisions of the Bill of Rights to the states, see Heller, 128 S. Ct. at 2812-13 & nn.22-23.
36. The majority did drop a pointed note that the case first declining to apply the Second Amendment to the states "also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases." Heller, 128 S. Ct at 2813 n.23.
37. Cf. John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174, 176 (1998) ("Whether Lopez marks a dramatic shift in Commerce Clause jurisprudence or is instead destined to be a 'but see' citation remains to be seen.").
38. See, e.g., Maura Dolan, The 2nd Amendment: Reaction to the Court Ruling, L.A. TIMES, June 27, 2008, at A19.
39. See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, GALLUP, Mar. 27, 2008, http://www.gallup.com/poll/105721/ Public-Believes-Americans-Right-Own-Guns.aspx ("A solid majority of the U.S. public, 73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.").
40. See, e.g., Heller, 128 S. Ct at 2822 (Stevens, J., dissenting);
41. id. at 2847 (Breyer, J., dissenting). Justice Breyer seems to be feeling his way toward some sort of "undue burden" standard, though it is more of an "undue burden-lite" standard, as it is difficult to imagine him upholding a ban on abortion in the District of Columbia on the basis that one could reach a friendlier jurisdiction for the price of a subway ticket.
42. See id. at 2862 ("The adjacent States do permit the use of handguns for target practice, and those States are only a brief subway ride away.").
43. Likewise, Justice Stevens's primary dissent is, if anything, less clear than Justice Scalia's majority opinion on the appropriate standard of review. By contrast, Justice Breyer's dissent is quite detailed.
44. See Reynolds & Denning, Constitutional Revolution, supra note 15, at 385-91 (discussing several such cases).
45. What one of us has elsewhere called the "new doctrinalism" is concerned with judicial generation of rules that implement or enforce constitutional meaning. See generally Brannon P. Denning, TAe New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 TENN. L. REV. (forth-coming 2008);
46. RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 76-101 (2001);
47. KERMIT ROOSEVELT III, THE MYTH OF JUDICIAL ACTIVISM 22-36 (2006);
48. Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1 (2004).
49. See, e.g., ROOSEVELT, supra note 33, at 23-36; Berman, supra note 33, at 92-100 (describing factors influencing choices of decision rules).
50. See FALLON, supra note 33, at 77-79 (listing "A Catalogue of Constitutional Tests").
51. See generally Brief for the United States as Amicus Curiae, supra note 22;
52. Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683 (2007).
53. But see Glenn Harlan Reynolds, Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and "Reasonable Regulation", 75 TENN. L. REV. 137 (2007) (comparing "reasonable regulation" in Second Amendment context to reasonable regulation in the context of the Supreme Court's unenumerated rights jurisprudence).
54. See Glenn Harlan Reynolds, Looking Ahead: October Term 2007, 2007 CATO SUP. CT. REV. 335, 350-52 (describing the Supreme Court's reduced influence on federal courts of appeals).