Huffpost Politics
THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Dennis A. Henigan Headshot

What the "Gun Rights" People Really Want: A Heller Do-over

Posted: Updated:

The "gun rights" community is in full-throated opposition to the nomination of Judge Sonia Sotomayor to the Supreme Court and the pressure is building on the National Rifle Association to join the party. Last week, 26 well-recognized pro-gun partisans signed a letter opposing her nomination, led by former NRA President Sandy Froman and joined by 15 current members of the NRA Board or leaders of NRA state affiliates.

The grounds for opposition to Sotomayor on Second Amendment grounds are thin, but revealing. What the Second Amendment absolutists really want is a do-over of last year's Supreme Court ruling in District of Columbia v. Heller. They know they won't get it with Justice Sotomayor.

Why would the pro-gun folks want a Heller do-over? Didn't the Heller Court vindicate their vision of the Second Amendment? Not really. It is true that the Heller majority discovered a previously non-existent individual right to a gun in the home for self-defense. But the Court also reached out to affirm that a wide range of gun control laws -- from "laws imposing conditions and qualifications on the commercial sale of arms" to "prohibitions on carrying concealed weapons" -- are "presumptively lawful" even under the newly expansive reading of the Second Amendment. The "gun rights" crowd won a victory that may prove more symbol than substance.

As Professor Adam Winkler of UCLA Law School has put it, "The Heller case is a landmark decision that has not changed very much at all." During the year since the Heller ruling, federal courts have been upholding all manner of gun laws. The only exceptions are two rulings striking down a provision of the Adam Walsh Child Protection and Safety Act barring gun possession by persons awaiting trial for child pornography offenses. Funny how we've heard little cheering from the gun lobby about that triumph for Second Amendment rights.

There is much discussion in legal circles about whether the Supreme Court will apply the Second Amendment to the states through the Due Process Clause of the Fourteenth Amendment, the so-called "incorporation" issue. The Heller decision expressly refrained from deciding that issue, leaving intact 19th century Supreme Court case law holding the Second Amendment applicable only to Congress. The issue seems primed for Supreme Court review, with the Second and Seventh Circuits ruling against incorporation and the Ninth Circuit ruling for it.

But the ultimate significance of the incorporation issue for state and local gun laws may be less than first meets the eye. After deciding that the Second Amendment applies to state and local laws, the Ninth Circuit upheld the gun law at issue - a tough regulation of the possession and sale of guns on public property - because it did not "meaningfully impede" the narrow right recognized in Heller to have a gun in the home for self-defense. The broad categories of "presumptively lawful" gun laws laid out in Heller provide the framework for upholding a variety of state and local gun control laws short of a handgun ban similar to that struck down in Heller.

The gun advocates' real problem with Judge Sotomayor is that her gun rulings reflect a respect for judicial precedent, not the activism they need for a Heller do-over. They criticize her for joining the 3-0 Second Circuit opinion in Maloney v. Cuomo upholding a New York state statute banning possession of a particular martial arts weapon. As Judge Sotomayor explained in response to questioning by Senator Orrin Hatch (R-Utah), that holding simply enforced the Supreme Court's still valid precedent, as well as Second Circuit case law, finding the Second Amendment inapplicable to the states.

They invoke the 3-0 Second Circuit ruling in United States v. Sanchez-Villar finding that "the right to possess a gun is clearly not a fundamental right," but that conclusion also merely restated longstanding precedent that the right has not been found "fundamental" as required for incorporation against the states.

Fidelity to precedent is not what the "gun rights" people are looking for. They want a Heller do-over.

For more information, see Dennis Henigan's new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy.