Heller: Back to the Drawing Board
In short, it appears that the Tenth Circuit will have to rewrite much of its Second Amendment jurisprudence. In U.S. v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004), the Tenth Circuit held that “[d]rawing on Miller, we repeatedly have held that to prevail on a Second Amendment challenge, a party must show that possession of a firearm is in connection with participation in a ‘well-regulated’ ‘state’ ‘militia.’” Similarly, in U.S. v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001), the Tenth Circuit held that “a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia.” The court noted that “[t]his is simply a straightforward reading of the text of the Second Amendment.” These cases and the legal arguments underlying them are obviously inapplicable after Heller. [Notably, however, neither of these cases yet have so much as a yellow flag attached to them by Westlaw. Either Westlaw is falling behind updating its system or Heller’s approach to Miller is such that it did not trigger whatever system Westlaw uses to monitor reversals]. Indeed, Heller holds that Miller “positively suggests, that the Second Amendment confers an individual right to keep and bear arms.” Heller goes on to hold that “[a]s for the ‘hundreds of judges,’ . . . who have relied on the view of the Second Amendment Justice S[tevens] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.” [This seems to be unnecessarily harsh criticism of much of the federal judiciary, particularly given the repeated refusal of the Supreme Court to clarify Miller and the obligation of the courts to apply Supreme Court precedent].
It is going to be an interesting few years for Second Amendment litigation.