The Inside Details of the Heller Decision

By Jim on November 19th, 2008

This is a long read but quite interesting. Gives a detailed report on how Heller came about and what it’s ramifications might be for gun owners across America.

In retrospect, D.C. v. Heller seems almost inevitable, because of shifting public and academic attitudes toward gun rights. But victory came only after a protracted struggle, with many pitfalls along the way. It was pulled off by a small gang of philosophically dedicated lawyers—not “gun nuts” in any stereotypical sense, but thoughtful libertarians who believe Second Amendment liberties are a vital part of our free republic. Together they consciously crafted a solid, clean civil rights case to overturn the most onerous and restrictive set of gun regulations in the country. In the process, they set the stage for further legal challenges to other firearms restrictions from coast to coast.

Someone was going to reach the Supreme Court with a challenge to firearms regulation. In the 2001 Fifth Circuit case U.S. v. Emerson, a federal appeals court for the first time declared unequivocally that the Second Amendment, despite containing the word “militia” in its preamble, did indeed protect an individual right to bear arms. Though groundbreaking in the judicial system, that individual rights interpretation was already dominant within the legal academy, after decades of scholarship chipped away at the once-preeminent “collective rights” view that the amendment only protected either a state’s right to maintain a militia, or an individual’s rights within the context of militia service.