As Damon Root noted yesterday, Dennis Henigan of the Brady Center to Prevent Gun Violence argues that D.C. v. Heller "may well prove more symbol than substance," since "the lower courts are likely to interpret [it] as giving a constitutional green light to virtually every gun control law short of a handgun ban." This is quite different from the position Henigan took before the decision came down, when he portrayed the prospect that the Supreme Court would declare the D.C. gun ban unconstitutional as a threat to every existing firearm restriction.
Back in February, Heller backer Robert Levy took the same cautious position he continues to hold, telling Capitol Weekly the case "lays the framework for challenging gun laws nationwide" but adding that such challenges would not necessarily be successful, since upholding the Second Amendment does not mean overturning all forms of gun control. "Bob Levy has a very strong vested interest in making statements like that," Henigan replied. "He wants to make this case seem as unthreatening as possible." And now so does Henigan, although his stance as a litigator may conflict with the Brady Center's fund raising appeals.
Writing in the Northwestern University Law Review, University of Tennessee law professor Glenn Reynolds and Samford University law professor Brannon Denning are similarly cautious in predicting the consequences of Heller. They note that the decision could turn out like U.S. v. Lopez, the 1995 ruling in which the Supreme Court signaled that it was ready to begin enforcing constitutional limits on Congress' power to regulate interstate commerce. The "federalism revolution" heralded by that seemingly momentous decision, Reynolds and Denning write, "essentially petered out in the face of lower-court resistance" even before the Court itself abandoned the effort in Gonzales v. Raich, the 2005 medical marijuana case. They offer two major reasons to hope that Heller's fate will be different:
Perhaps most important is the fact that there was virtually no coordinated follow-up litigation to Lopez on the part of the public interest bar. Most of the litigation was opportunistic: Lopez was cited in just about every appeal on behalf of those convicted of federal criminal offenses, who, as a group, rarely present the most sympathetic face. By contrast, several lawsuits were filed challenging gun control laws in other communities within hours of the Heller opinion's publication. Given the stakes, interest groups challenging local laws have greater incentive than individual criminal defense attorneys to ensure that only the best cases with the cleanest facts are brought.
Moreover, there was relatively little public interest in Lopez or the Commerce Clause. The Second Amendment, on the other hand, is among the most significant provisions of the Bill of Rights from the standpoint of public engagement. The public interest groups sponsoring follow-up litigation will have every incentive to publicize lower court attempts to evade or blunt the effect of Heller and can try to choose cert-worthy cases from among those to be litigated. Given popular interest, the media and elected officials will have an incentive to monitor lower court implementation of Heller.