In keeping one's eye on the ferment in lower courts on gun issues post-Heller, Eugene Volokh at the Volokh Conspiracy finds an interesting footnote in a U.S District Court for Utah memorandum opinion and order.
The order allows the (partial) moving forward of a lawsuit charging some police officers of 4th Amendment excessive force violations due to their ruffian behavior against a man in Salt Lake City who didn't, because he was physically unable to, raise both hands above his head when ordered to by the cops. The details of the story in Volokh's post make for aggravating reading, to be sure.
While the case was not a Second Amendment one, the fact that a gang of cops were accosting Miles Lund in the first place was because of a call in about a "man with a gun" in the park. As it turned out, Lund was not that "man with a gun." But the footnote avers interestingly, among much discussion of specifically Utah constitutional provisions and policies:
By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution….. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) ("There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.")….. Salt Lake City's asserted governmental interest in its police officers' response to a report of a "man with a gun" in a public park cannot be weighed in isolation….there may well be more individual constitutional rights at stake than the Fourth Amendment freedom from unreasonable searches and seizures.
For the history of the case that started this new wave of Second Amendment judicial musings, see my new book Gun Control on Trial.