The Brady Center to Prevent Gun Violence's Dennis Henigan has written a very interesting response to Robert Levy's Cato Unbound essay on the future of gun rights after D.C. v. Heller. Essentially, Henigan argues that the Court's conservatives have mangled the Constitution in order to reach a preferred outcome that will have little real world impact:
Although we will no doubt see an avalanche of Second Amendment claims (most by criminal defense lawyers on behalf of their clients seeking to avoid indictments and convictions for violations of gun laws), generally the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban. Regardless of whether the Heller majority's newly discovered right eventually is incorporated as a restraint on the states, its significance may well prove more symbol than substance.
While it certainly makes rhetorical sense for Henigan to downplay the victory (and link it to criminals and their shady attorneys), it's not at all clear that the lower courts will see (or will continue to see) things his way. As David Kopel noted in reason after Heller came down, "Rome was not built in a day, and neither is constitutional doctrine."
For most of our nation's history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.
Moreover, the importance of the Court finally recognizing that the Second Amendment secures an individual right—not a collective one—shouldn't be minimized. And I must say, I find it pretty hard to believe that Henigan and his associates at Brady are really so lackadaisical about the incorporation of the amendment against the states. Chicago officials, on the other hand, are gearing up to protect the city's handgun ban in court. As deputy corporation counsel Benna Solomon told the Chicago Tribune, "We are prepared to aggressively litigate this issue and defend this ordinance."
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