Supreme Court's Second Amendment Decision In D.C. v. Heller May Help Fight Against Gun Violence, Brady Center Report Finds

Oct 21, 2008

Washington, DC - The U.S. Supreme Court’s Second Amendment decision in D.C. v. Heller may have the “unintended consequence” of helping to enact stronger gun laws, according to a report issued today by the Legal Action Project of the Brady Center to Prevent Gun Violence. 

While the decision gives criminal defendants a legal tool to use to potentially avoid criminal convictions or mitigate their punishments and will inspire gun lobby challenges of gun laws, it may also clear some of the wedge politics that have blocked the nation from passing sensible gun laws in the future, the report says.

The report, titled “Unintended Consequences:  What The Supreme Court’s Second Amendment Decision In D.C. v. Heller Means For The Future Of Gun Laws,” comes four months after the Supreme Court’s ruling and just a few weeks before the Court is scheduled to argue another case involving guns: specifically, the scope of the current federal law prohibiting spousal abusers from possessing firearms.  It is available at http://www.bradycenter.org/xshare/pdf/heller/post-heller-white-paper.pdf.

“As the report explains, the Supreme Court has taken away the extremes of the gun debate, and left us in the reasonable middle ground of common sense proposals to reduce gun violence supported by most Americans,” said Paul Helmke, President of the Brady Center.  “By making it clear that law-abiding citizens have an individual right to possess guns for self-defense, the Supreme Court may have paved the way for the strong gun laws that Americans want and need to protect our communities from violent crime.”

The report argues that the decision may have a positive impact on American gun policy.  “The Court went out of its way to make clear that most gun laws are ‘presumptively’ constitutional while also putting to rest gun owners’ fears of a total ban or ultimate confiscation of all firearms,” its authors wrote. “By taking the extremes of the gun policy debate off the table, Heller has the potential to allow genuine progress in implementing reasonable gun restrictions, while protecting basic rights to possess firearms.  The unintended consequence of Heller is that it may end up 'de-wedgeifying' one the of the more divisive 'wedge' issues on the political landscape: guns.  The net result of Heller would then be positive by leading to the enactment of the strong gun laws that we need - and the vast majority of Americans want -- to protect our communities from gun violence.”

But the report also notes the risks of the decision - including its usefulness to the gun lobby in seeking to strike down reasonable gun laws in the courts, as well as to criminal defense attorneys.  “There are important potential legal risks presented by the Court’s recognition of a private right to arms unrestricted to militia use.  Criminal defendants (and their defense lawyers) can be expected to try to transform Heller into a “get out of jail free” card, to attempt to evade punishment for serious gun crimes.  Some have already begun to argue that the unlawful possession or use of a gun was an ‘exercise of their Constitutional right to keep and bear arms’,” the report states.  “While those attacks have been unsuccessful so far, it is possible that prosecutors will be more likely to agree to a plea bargain, or that a different judge, facing different facts, could allow a criminal to walk free based on a misguided extension of the Heller ruling.”

On November 10, the Supreme Court is scheduled to hear oral arguments in U.S. v. Hayes, the first case involving firearm possession the Court will consider since the landmark Heller ruling.  If the Court rules for Hayes, many individuals convicted of domestic violence misdemeanors could be permitted to possess guns.

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As the nation's largest, non-partisan, grassroots organization leading the fight to prevent gun violence, the Brady Campaign, with its dedicated network of Million Mom March Chapters, works to enact and enforce sensible gun laws, regulations and public policies. The Brady Campaign is devoted to creating an America free from gun violence, where all Americans are safe at home, at school, at work, and in our communities.

For continuing insight and comment on the gun issue, read Paul Helmke's blog at www.bradycampaign.org/blog/. Visit the Brady Campaign website at www.bradycampaign.org.