Ten years ago today, the landmark Supreme Court decision of District of Columbia v. Heller was a stunning victory for freedom and originalism, in more than one way. First, it held that the right to keep and bear arms was an individual right, not merely a watered-down collective right attached to service in a militia. Additionally, Heller established that the toothless "rational basis" test was not to be used by lower courts in evaluating Second Amendment claims. Heller's thorough exploration of the text, history, and tradition of the right to keep and bear arms enshrined in our Constitution not only gave the Court's bottom-line decision great weight, it provided a road map for how courts should evaluate and enforce the Constitution's guarantees. And, of course, it struck down the D.C. laws that prevented Dick Heller from exercising his fundamental right to keep and bear arms.
Dick Heller's extraordinary legal team, helmed by the unmatched Alan Gura -- who has gone on to be the most successful Second Amendment appellate litigator, bar none -- achieved what often seemed like the impossible: a Supreme Court decision standing for the proposition that the Second Amendment means what it says, and that we have a real Bill of Rights, not a Bill of Needs or Bill of Government-Approved Conduct.
Because of Heller, we saw the fundamental right's application to states and local governments in the Court's McDonald v. Chicago decision, which struck down Chicago's handgun ban, just two years later. Because of Heller, one can now access the right to keep and bear arms where it was previously banned on pain of criminal penalty, such as in Chicago and the District of Columbia. Because of Heller, we see that some law-abiding people who once made a mistake, but have since lived peaceful and productive lives, can argue for the restoration of their right to bear arms. Because of Heller, no government will be able to completely extinguish our sacred rights through legislation, initiative, regulation, or by fiat. And because of Heller, advocates for the right to keep and bear arms will have a reason to continue to file new challenges in efforts to defend and advance this most-important constitutional guarantee--the guarantee of a "negative" right against government infringement that pre-exists government itself.
But it hasn't exactly been a smooth or easy ride since that historic June day. Ten years ago, many people believed that Heller would set off a tidal wave of litigation and a cascade of falling gun control laws in jurisdictions across the country. Half of that, at least, has been proved true. A great many Second Amendment civil challenges have been litigated in state and federal courts from Hawaii to Massachusetts, not to mention those claims raised in defending against criminal prosecutions under weapons laws. What we have seen since the triumph of Heller is, for the most part, that courts generally uphold weapons control laws using whatever jiggery-pokery necessary to find for the government -- no matter how tenuously the laws might be connected to a government interest, regardless of any tailoring (or lack of it), in spite of how burdensome it might be, ignoring evidentiary standards and procedural rules along the way. And we have since come to experience that Heller (perhaps unknowingly) offered a path to victory for both proponents and opponents of the Second Amendment alike. Indeed, some hostile governments and courts have made much of using some of Heller's language against us, and in some cases boldly employing the very "interest-balancing" approach that Justice Breyer suggested in his dissent (but was ultimately rejected by the Court).
We hope that we will one day soon see the Supreme Court remind recalcitrant lower courts that the Second Amendment's guarantees are meaningful. As Justice Scalia penned in Heller, "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon," especially because "[a] constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all."
As Justice Thomas recently noted in a dissent from the denial of yet another Second Amendment challenge, "The right to keep and bear arms is apparently this Court's constitutional orphan. And the lower courts seem to have gotten the message." It is difficult, if not impossible, to argue with this damning commentary on the state of the Second Amendment, now ten years removed from the excitement surrounding Heller. Thus, until the Supreme Court holds that the Second Amendment means that government officials can't simply "self-certify" gun control laws as constitutional, and that it protects the right to bear arms outside our homes, semiautomatic firearms like AR-15s, common semiautomatic handguns, and the like, the Heller decision will likely continue to be viewed by most legal scholars -- and the majority of gun owners, who suffer real tyranny in hostile states like California, New York, New Jersey, Maryland, and others -- as the decision that at the same time changed everything, and not much at all.
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