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Does Heller’s Incorporation Matter?


It’s not surprising that the Ninth Circuit has held that the Second Amendment should be “incorporated” and apply to state governments as well as the federal government, and when the case gets to the Supreme Court the only question is how many justices will join the majority to uphold the decision. (I wouldn’t be surprised to see some or all of the more liberal writing a concurrence saying that they disagree with Heller but as long as gun ownership is a fundamental individual right it should also apply against state governments.) It’s true that if you take the standard of incorporation the Court has allegedly applied — whether a right “found to be implicit in the concept of ordered liberty” — this would be a tough case, as plenty of liberal democracies have flourished with draconian gun control regulations. But, then, you could say the same thing about many of the civil liberties in the Bill of Rights that have been incorporated as well. It’s an easy case in context.

The more interesting question is whether incorporating the Second Amendment will actually make much difference. The Court in Heller explicitly said that it was not addressing more narrowly targeted restrictions, and lower courts have taken the hint:

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal immigrants and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles, who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”

My guess is that, at least in the medium-term, Heller is going to be a lot like the federalism “revolution” of the Rehnquist Court — a few regulations of very marginal policy significance struck down, but that’s it. Despite all the excited commentary the decision has generated from both supporters and critics, I suspect that its policy impact will be pretty negligible. Local gun bans don’t have much impact in a federal system, a federal ban is a complete non-starter with or without a Supreme Court, and what precise mix of marginal regulations the state and federal governments adopt probably isn’t very consequential.

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