Brady Vice President and Legal Director Dennis Henigan was graciously invited by the Cato Institute to participate in a discussion of the legal and political effects of the Heller decision.

Joining Robert Levy, Prof. Erwin Chemerinsky and Dave Kopel, Dennis posted the initial reply to the lead entry written by Mr. Levy. You can read full reply here, after these extended excerpts:

... First, it is clear that there are not five votes on the Supreme Court for applying a “strict scrutiny� standard to gun laws. This was an important setback for Heller and a great victory for public safety.

Second, the majority took the highly unusual step of commenting on the constitutionality of numerous laws not at issue in the case, making it clear that a wide range of gun control laws remain “presumptively lawful.� These include (1) prohibitions on carrying concealed weapons (which the Court found were held lawful under early state Second Amendment analogues); (2) prohibitions on firearms possession by felons and the mentally ill; (3) laws forbidding firearms in “sensitive places� like schools and government buildings; (4) laws imposing “conditions and qualifications� on the commercial sale of arms (which could include background checks, waiting periods, licensing, etc.); (5) bans on “dangerous and unusual weapons� (which could include machine guns and assault weapons); and (6) laws regulating the storage of firearms to prevent accidents. Then, in a telling footnote, the Court adds that its list of “presumptively lawful regulatory measures. . . does not purport to be exhaustive.�

...

One of the gun lobby’s core arguments against reasonable gun laws is that every new restriction on guns is but a step down the “slippery slope� to gun confiscation and thus is a threat to ordinary gun owners. The “slippery slope� is key to the National Rifle Association’s strategy to make the gun issue a “cultural� or “wedge� issue politically. It frames gun control as an attack on a valued personal possession and, indeed, on a way of life symbolized by that possession.

In short, the gun lobby needs the debate to be about banning guns that are commonly used by law-abiding Americans. By erecting a constitutional barrier to a broad gun ban, the Heller ruling may have flattened the gun lobby’s “slippery slope,� making it harder for the NRA to use fear tactics to motivate gun owners to give their time, money and votes in opposing sensible gun laws and the candidates who support those laws. This is especially true since the majority of gun owners support reasonable gun control proposals on their merits. A recent poll shows that 83% of gun owners support closing the “gun show loophole� by extending Brady background checks to private sales at gun shows. Conversely, the ruling may make it easier for advocates of stronger gun laws to ensure that gun control is viewed as the public safety issue that it is, rather than as a divisive, cultural issue.

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Dennis's post has already generated discussion at The Plank in the The New Republic, and at Reason Magazine's Hit & Run blog in an entry by Damon Root (that follows his piece yesterday in Reason Online embracing the Supreme Court's judicial activism as a good thing).