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Section One

Heller in the Lower Courts: Percolation or Resistance?

Aside from the 2010 McDonald case, which incorporated the right to keep and bear arms through the Fourteenth Amendment and applied it to state and local governments, the Supreme Court has largely left the implementation of the right to the lower courts where litigants have had little success expanding the scope of the right. Is this because, as Justice Thomas has charged in published dissents from denial of certiorari, that lower courts are intent on seeing the Second Amendment join the ranks of "second class rights"? Is this reticence the product of the signals that the Court itself sent in the Heller opinion? Is it part of the ordinary percolation that occurs when the Court issues a potentially landmark opinion of uncertain scope? Or is it some combination of all three? I will survey the major post-Heller Second Amendment cases and speculate why the courts have moved so cautiously.

Professor Brannon P. Denning
Associate Dean and Starnes Professor of Law
Samford University Cumberland School of Law

Looking to the Future: The Second Amendment after NYSRPA v. New York

For ten years after McDonald, the Supreme Court (with one exception, a short per curiam) declined to grant certiorari in any Second Amendment case. New York State Rifle and Pistol Ass'n v. New York, argued in December, was the first case accepted since Justice Kennedy's retirement.

This presentation will focus upon the cases now pending in the judicial "pipeline" and from which the Court might choose its next grants. Included among these are cases challenging "may issue" permit systems for firearm ownership, challenging GCA68's ban on interstate sales as applied to residents of D.C. (which has only one licensed firearms dealer), and challenging the California "handgun roster" system, which restricts dealers to selling handguns the state has certified as "safe," and one posing the issue of whether prohibited possessors can bring Second Amendment "as applied" cases.

David T. Hardy
Attorney & Author