No, because the case was specifically chosen to be narrow to get simply the ruling that the 2nd Amendment was not obsolete, not a collective right of some government organized religion, nor restricted to flint locks and muskets.Mike1951 wrote:As I recall, the NRA didn't support the Heller case because they thought it was not the right vehicle.
Many of the responses I've read since the decision seem to convey that this case was too narrow.
Couldn't the NRA have been right?
It was designed to get the ruling it achieved: A clear protection of an natural individual right, separate from participation in a militia, to keep (own) and bear (carry) ordinary firearms in common use.
Success is its own reward, but the truth is that the court/political atmosphere was (or is) not likely to change appreciably for the better, and could easily get worse, especially if Obama is elected (or any Democrat had been elected.)
And had it failed, there is more chance that a NEW amendment would pass now, than it 10,20, 50 or more years when people have become even more complacent about rights. (This was in fact realistic since a number of states passed just such amendments in the past 20 years or so, and clearly the adoption of Shall Issue concealed carry by about 40 states total show political will to defend the RKBA.)
Had Heller failed there are almost no downside -- the 2nd Amendment wasn't being used to protect the RKBA; that was happening through legislatures, state Constitutions, and state courts. The only real downside would have been publicity and public opinion effects.
With success, the gun ban(s) becomes illegal, the right is clearly protected for individuals.
Official incorporation (making it binding on the states) is the next step which is precisely what successes will (eventually) do when the NRA (and others) appeal the gun bans in San Francisco and the Chicago area -- these are essentially equal to the DC ban in severity but are local (and state) laws rather than the District which is (directly) subject to Federal law.
Right now incorporation is suppositional and subject to debate. Although I think that the language in Heller which says the 2nd Amendment protects a natural right and is just like the 1st and 4th Amendment is pretty clear, it will take more cases to resolve it to trustworthy law.
After incorporation, other laws, less restrictive bans or perhaps failure to provide for (some form of) carry in public can be challenged.
Wisconsin and Illinois have no general provision for concealed carry (nor open) by the general public which is also true for DC of course. (Technically DC may have a carry license, but no one can find examples of any permits being issued even though it is suspected that perhaps some VIPs have permits.)
Hawaii and Maryland are actually similar to this as none are generally issued, but it are usually listed with the 8-9 (or so) "May Issue" that don't follow reasonable and consistent rules.
This leaves 39-40 states with essentially shall issue concealed carry laws (and some open carry as well.) Two, Alaska and Vermont, have no requirement for a license although Alaska offers the option for a citizen to obtain a license.
Alabama, Connecticutt, and Iowa which are "May Issue" states are generally considered fair -- there is more disagreement about Iowa usually.
California and NY are may issue in principle but some cities/counties are no issue (others are near shall issue) since the sheriff or police chief gets to decide and LA or SF just doesn't issue them (unless you are again a VIP maybe.)
Although I think she now longer has it, US Senator Diane Feinstein a committed gun banner had a CHL at one time. I believe there will be "equal opportunity" challenges to such laws unless we first suffer a defeat.
Remember, even if we don't find an upstanding citizen like Heller (or Parker and the 3-4 others that started this case) to bring suit, sooner or later some "criminal" will get picked up who doesn't have a felony record but is breaking the gun laws of some jurisdiction -- then his defense attorney will bring the challenge.
It's going to happen -- the question is when, and what will be the results.
Probably the only thing that has prevented this so long is the abysmal 2nd Amendment coverage that was typical of law schools, where it was traditionally either virtually ignored or was misinterpreted under the confusing United States v. Miller decision.
In the cases where they didn't have clients with other and previous felonies where it was not going to help anyway, defense attorneys likely had no idea they might win.
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