Roe v. Heller

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Roe v. Heller (by NYCPF member)

February 22, 2016

A friend recently asked the following -
[?] Honest question: why does "Overturn Heller" not have the same populist/rhetorical force that "Overturn Roe" does on the right or that "Overturn Citizens United" does (rather illogically, actually) on the left? It's a terrible precedent - bad textuallism, bad originalism, and (from a liberal perspective) bad consequentialism, all in one package. So... who decides which villainous precedents get villainized?

My response –

The tl;dr:
1) Heller is far less amenable than Roe or Citizens United to easy characterization for use as a political rallying cry;
2) Heller was not actually a huge victory for gun rights.

* * *
1) Characterizing the holdings
First, think about how you frame it if you’re a politician, say, one who cares about getting (re)elected:
Roe = gov’t can’t tell us what to do with our bodies (left)
= killing babies (right)
Citizens United = killing campaign finance reform (left)
= gov’t can’t tell us how to spend our money (right)
Heller = um…
1. …can’t say impeding states’ rights, that’s a GOP battle cry, and anyway the 10th Amend. doesn’t apply if we say the 2nd one does {and if that’s your rabbit hole, guess what DC isn’t a state, so have fun with that “federal enclave” stuff};

2. …can’t say judicial triumphalism/activism, that’s another GOP trope;

3 … “Heller = crap originalism” won’t have meaning for many voters/constituents, nor will the slightly more refined but less fun “Heller = ignoring multiple canons of constitutional interpretation”;

4 …can’t really say the 2nd Amend is really about militia-related interests without sounding like you think forming a militia might be ok … can you? (Even though treating fully half of the entire amendment as “prefatory” is absurd, in terms of constitutional interpretation, but then we’re back to canons of interpretation not exactly rousing the passions of the populace.)

5. the gun lobby, having been recruited by a security guard who thinks DC is at risk of facing a terrorist ground war (( Heller’s own written statement submitted as testimony to the DC Council’s Committee on Public Safety and the Judiciary, Sept. 18, 2008)), cares nothing for the democratic process, spending – or at least billing – millions (Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Attorneys Fees and Costs, Heller v. District of Columbia, No. 03-civ-0213 (D.D.C. Aug. 25, 2008) (see p.11 for breakdown of fees per attorney) (avail. at to attempt to strike down restrictions lawfully enacted by the town council and substantively supported by the electorate…? [Not much pizazz. Maybe a marketing person could do something with this one.]

= they can’t take away our right to defend our “hearth and home.” (right)

Second, think about how you frame it for visceral impact on individuals who may form an activist base. Basically the same characterizations of the decisions could be deployed – and here honestly I would think Heller would pack more punch than Citizens United…if you could come up with the right angle. ~*Or is it that guns don’t kill people, money kills people?*~

2) Heller has had minimal impact, in terms of gun rights.
So, why aren’t we more upset about Heller? If we set aside the stunning disregard for canons of constitutional interpretation, and think instead about gun regulation/gun rights, what did we get out of the decision?

• Heller established some sort of liberty interest in keeping an (assembled) handgun in one’s home. But it is limited.

• Heller is, for one, limited to “handguns,” or whatever weapons federal judges imagine law-abiding citizens might use, and so courts have been upholding restrictions on “unusual” weapons “not typically possessed” by normcore hearth-and-home defenders. (See, e.g., United States v. Zaleski, 489 Fed. Appx. 474 (2d Cir. 2010)(short-barreled shotguns not typically possessed by law-abiding citizens) United States v. McCartney, 2009 WL 4884336, at *2 (9th Cir. Nov. 20, 2009) (machine guns, silencers, grenades and directional mines [!wtf is a directional mine?!] not "typically possessed by law-abiding citizens for lawful purposes"); United States v. Tagg, 572 F.3d 1320, 1326 (11th Cir. 2009) ("[u]nlike the handguns in Heller, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes”); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008)("[m]achine guns are not in common use by law-abiding citizens for lawful purposes")).

• And indeed, and maybe why there isn’t more hue and cry to overturn it, apparently since Heller almost all challenges to gun regulation have failed. (Law Center to Prevent Gun Violence, Post-Heller Litigation Summary, Nov. 14 2014, p.7 (“Of the more than 900 cases tracked by the Law Center, 96% have rejected the Second Amendment challenge.”).

Nevertheless, Dick Anthony Heller, now in his mid-70s, and his (presumably armed) backers, have continued to litigate against DC gun regs. Heller II had something to do with “long guns.” Or was that Heller III? (See, perhaps, Heller v. District of Columbia, 14-7071 (D.C. Cir. Sept. 18, 2015)(explains some of the tortured procedural history, which I read, but could not retain long enough to produce a snappy summary for you guys). The papers for rehearing and rehearing en banc were filed last fall…and so it all staggers on. (D.C. Court of Appeals Docket #14-7071).