The Surprise of Heller

One of the questions raised in the aftermath of a landmark Supreme Court decision is what difference a Court decision makes.  What happens once the Court has spoken on an important issue of the day?  One answer to this question is reflected in the reaction to the Supreme Court’s 2008 decision in DC v. Heller.  The 5-4 decision struck down a DC prohibition on handgun possession and established a Second Amendment right to own a gun for self-defense.  The decision met with strong reactions from those who support gun rights.  For example, Sen. John McCain (R-AZ) hailed the decision: “[T]oday’s ruling recognizes that gun ownership is a fundamental right — sacred, just as the right to free speech and assembly.” [1]

In the wake of that decision, it may be surprising that the consensus three years later is that Heller has not led to a wide rejection of firearms regulations in states and localities.  As noted in a piece in the Washington Post, despite expectations that Heller and last year’s decision in McDonald v. Chicago would bring about reductions in gun regulations, it appears that little has changed with respect to firearms regulations; the courts have continued to uphold them.  The Post article notes that: “Even those challenging gun restrictions acknowledge that the courts have been unwilling to expand upon the basic right that most people agree Heller bestowed: the ability to keep a handgun in one’s home for self-defense purposes.”[2]

Part of the reason for courts’ reluctance to strike down gun regulations has to do with the perceived narrowness of the Supreme Court’s opinion, which appeared to restrict the decision to regulations that interfered with the ability of individuals to possess firearms for self-defense.  Of more interest is the hesitation that the courts seem to feel based upon policy reasons; judges are concerned about the impact of overruling gun regulations that will affect the safety of individuals.  This concern cuts across the ideological spectrum.  J. Harvey Wilkinson, III, regarded as a conservative jurist, noted, “This is serious business.  We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.” [3]

The aftermath of Heller is a great example of the complexity of the impact of judicial decisions.  It illustrates that winning a case is just the first step.  The other branches of government, and other courts, are responsible for implementing decisions and their preferences and concerns can mitigate the Court’s impact.

 

[1] http://realclearpolitics.blogs.time.com/2008/06/26/mccain_reacts_to_scotus_gun_de/, accessed 10/4/2011

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