Academic

Reynolds & Denning on Heller in the Lower Courts

By Lawrence Solum

Glenn Harlan Reynolds and Brannon P. Denning (University of Tennessee College of Law and Cumberland School of Law) have posted Heller's Future in the Lower Courts (Northwestern University Law Review, Vol. 102, No. 406, 2008) on SSRN.  Here is the abstract:

The Supreme Court's recent decision in District of Columbia v. Heller not only established an individual right to gun ownership, but also overturned - by a 9-0 margin - lower-court caselaw based on a "collective right" interpretation of the Second Amendment. This article looks at how Heller is likely to fare in the lower courts, based on experience with other recent Supreme Court decisions, and incorporates new scholarship on decision rules and the so-called "new doctrinalism."

And from the text:

[T]he Heller majority?s refusal to be pinned down on a specific standard of review might also leave an opening for lower courts to confine Heller to its facts.20 For example, a court might read Heller as standing for the proposition that anything less than an absolute ban could pass muster. Even if a reviewing court adopts the kind of intermediate standard of review urged by the Solicitor General,21 it might simply apply the standard in a way that defers to governmental judgments about the necessity of regulation. A more explicit articulation of the standard to be employed could have discou-raged lower court evasion of Heller, or at least made such evasion some-what easier to detect, if the Court was inclined to monitor lower courts for compliance, something that it did not do following Lopez.

And:

Litigants ought to study and develop responses to Justice Breyer?s ?interest-balancing? standard of review. Likewise, those defending existing or pro-posed gun controls?especially those that do not go as far as the District?s did?have another opportunity to argue against categorical rules and pre-sumptions of unconstitutionality. In truth, this is probably the debate that we should have been having all these years: which regulations of private firearms are the ?reasonable? ones that most people?including most of those who support an individual rights reading of the Second Amend-ment?can support. At the very least, the Court?s interring of the ?collec-tive rights? or ?military purpose? interpretation of the Second Amendment has cleared the way for that debate to begin.

Brief, but informative.  Recommended.

Full post as published by Legal Theory Blog on July 18, 2008 (boomark / email).