Gun Rights and the Constitution: Was Heller Insignificant?

By David Kopel

26 March, 2009, The New Ledger. More by Kopel on post-Heller.

Has the Supreme Court decision in District of Columbia v. Heller–which affirmed the Second Amendment and declared the D.C. handgun ban unconstitutional–been of almost no significance? So claimed the New York Times in a recent article by Supreme Court reporter Adam Liptak. Unfortunately, Liptak's article followed in a long New York Times tradition of credulously reporting the claims of one anti-gun professor, without conducting sufficient research to see if the claims hold up.

Let's start with the most obvious facts which the Times overlooked. On the day that Heller was decided, the citizens of five Chicago suburbs, and of Chicago itself, were prohibited from owning guns. Residents of apartments provided by the San Francisco Housing Authority were prohibited from owning any gun. Within 24 hours of the Heller decision, gun rights organizations—including the National Rifle Association (NRA) and the Second Amendment Foundation (SAF)—filed lawsuits against the gun bans.

Today, the residents of San Francisco public housing can own guns in their homes. In four of the five Chicago suburbs (Morton Grove, Evanston, Wilmette, and Winnetka), the handgun bans have been repealed. Yet according to the Times, "So far, Heller is firing blanks."

The Times came that erroneous conclusion, it appears, by credulously relying on UCLA law professor Adam Winkler. The Times quotes Winkler: "To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller." The Times does mention one exception to Winkler's claim, a recent case holding that the federal ban on gun possession by anyone who has been charged (but not convicted) of possessing child pornography is unconstitutional.

But there are many more exceptions that the Times missed. Gun owners have already won in San Francisco, and they won in the four Chicago suburbs.

The Times quoted Winkler: "the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose." Yet attorney David Hardy reported in January on his Arms and the Law weblog the San Francisco Housing Authority will be paying the attorneys fees for the plaintiff gun owners there (although the settlement terms of the San Francisco surrender are confidential).

But Winkler (and, derivatively, the Times) does not count or even acknowledge the existence of these victories. Winkler's database of cases includes only opinions written by federal courts. So if a gun rights group brings a suit in federal district court, or threatens to bring such a suit, and the gun-banning defendant realizes that defeat is likely, and then the defendant changes its anti-gun policies, Winkler and the Times ignore the result.

Likewise ignored is a win which does not generate a written opinion published in the Westlaw or Lexis databases. For example, in November, the NRA and SAF filed a lawsuit in federal district court in the Western District of Washington. Washington is the only state in the nation which requires legal resident aliens to obtain a special license in order to possess firearms, and the state licensing division was refusing to issue any alien licenses.

On January 27, the federal court entered a preliminary injunction, ordering the Washington Department of Licensing to resume issuing alien firearms licenses.

Nobody challenged the constitutionality of the state alien licensing law—just the Department's denial of constitutional rights by failing to carry out the law. So this Second Amendment victory does not count, by Winkler's hyper-narrow standard.

It likewise doesn't count for Winkler (and for the Times) when a defendant successfully invokes the Second Amendment to resist a criminal prosecution. That's what happened in United States v. Kitsch, decided last August in the federal district court for the Eastern District of Pennsylvania.

In that case, Kitsch had once been an undercover informant for law enforcement officials in New Jersey. The court explained his unusual circumstances:

As a means of helping the narcotics officer with whom he was working. . . . Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department . . . . As a result of the fire, Kitsch was charged with third-degree arson, a felony under both New Jersey and federal law. He pled guilty to the state offense after meeting with law enforcement officials who told him they would set aside the conviction and Kitsch could live as though the event had never happened. Although he served a thirty-day custodial sentence on Sundays, Kitsch avers that he truly and reasonably believed that his conviction had either been set aside or expunged.

Later, federal prosecutors in Pennsylvania brought charges against Kitsch, because it is illegal for someone with a felony conviction to possess a gun. The prosecutors argued that Kitsch's sincere belief that he was not a convicted felon was irrelevant. The judge disagreed, and ruled that "in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged." The court explained that, post-Heller, the government's strict liability interpretation of the statute might turn the statute into a violation of the Second Amendment.

Not a Second Amendment victory, according to Winkler and the Times. But hardly consistent with Winkler's claim that "the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose."

Winkler's extremely narrow field of vision also ignores state courts. So there's no mention of cases like Colvaiacolo v. Dormer, the October decision from a trial court in Suffolk County, New York, holding that New York State cannot require handgun licensees to keep their handguns locked in safe when not in use, because Heller ruled a similar requirement in D.C. unconstitutional.

It's true that, as Winkler points out, federal courts have rejected lots of Second Amendment claims brought by convicted felons, and by persons convicted of domestic violence, or by persons wishing to possess machine guns. This is no surprise, nor is it contrary to what was sought by the lawyers on the winning side of Heller. I was one of three lawyers who joined Alan Gura at the Supreme Court counsel table, as assistants in his presentation of the oral argument. I also wrote an amicus brief for a broad coalition of law enforcement organizations, and for half the District Attorneys in California; that brief argued that gun bans for people such as domestic abusers were consistent with the Second Amendment. Another group of District Attorneys, led by Maricopa County, Arizona, submitted an amicus brief explaining why gun bans for law-abiding citizens were unconstitutional, while gun bans for criminals were not. Likewise, thirty-one state Attorneys General filed an amicus brief on behalf of Mr. Heller, and they too foresaw no possibility that gun bans for convicted criminals or machine gun bans would be endangered by a Second Amendment victory.

Of course criminal defense lawyers often have to grasp at straws to defend their clients, so it's not surprising that there have been plenty of post-Heller cases in which defense lawyers have raised near-hopeless Second Amendment claims. It's hardly news that these cases have been losers.

Although the Times does not discuss Professor Winkler's role in Heller, he is not a disinterested academic. He filed an amicus brief on D.C.'s side, in which he argued that gun controls should be upheld if they are "reasonable," and that anything short of banning all guns is reasonable.

Justice Breyer and the three other Heller dissenters argued in favor of the reasonableness standard, while Justice Scalia's majority opinion explicitly rejected it.

Now, Winkler appears to be spinning the news by making it appear that post-Heller courts are, in effect, following his (rejected) standard. That's Winkler's prerogative, but the New York Times is not supposed to be so gullible.

Times writer Adam Liptak did talk with Sanford Levinson, an eminent professor of constitutional law at the University of Texas, who wrote a very influential article in the Yale Law Journal in 1989, recognizing the Second Amendment as an individual right. But while Levinson is a superstar of constitutional theory, he does not track the Second Amendment on a case by case basis.

As a journalist, Liptak should have tested Winkler's claims by speaking with a "pro-gun" attorney or a scholar with extensive knowledge of post-Heller litigation. David Hardy would have been a good choice, as would Alan Gura or Stephen Halbrook—both of whom have won some of the Second Amendment victories detailed above.

Then, Liptak might still have written an article explaining that Heller has not led to a raft of federal gun control laws being declared unconstitutional. But Liptak would not have inaccurately written that "So far, Heller is firing blanks." The attorneys for the State of Washington, the San Francisco Housing Authority, Wilmette, Evanston, Morton Grove, Winnetka, and Suffolk County are among those who know better.

David Kopel is a policy analyst with the Cato Institute, in Washington, D.C., and research director of the Independence Institute, in Golden, Colo.

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