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Courts Misusing Heller

by Jeff Knox

(September 10, 2008) “A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.” (Instructions to the jury in U.S. v. Gilbert)

In the months since the US Supreme Court’s landmark decision in District of Columbia v. Heller, there have been over a dozen rulings by judges referencing the case and virtually all of them used Heller to support limitations on firearms rights. The degree to which they used the opinion ranged from simply rebutting an appellant’s erroneous claim that Heller nullifies the law under which they were convicted, to actually using the language in the Heller opinion to support restrictions as constitutional. In U.S. v. Gilbert, the Federal Court of Appeals for the 9th Circuit did both.

On appeal, the 9th Circuit rejected Gilbert’s claim that the Heller decision’s recognition of the Second Amendment as protecting an individual right meant laws against felons possessing firearms and laws restricting possession of machineguns were unconstitutional. The Appeals Court correctly rejected this contention citing specific language in Heller which states that the decision is not to be taken to cast doubt upon the constitutionality of such laws. Had the court stopped there, no one would have reason to fault them, but the court didn’t stop there, instead they went on to suggest that Heller actually declared such laws to be constitutional.

There is a big difference between the Supreme Court saying, “We’re not addressing these issues” and the Court saying, “These laws are constitutional.” The Court was very careful in Heller to only make legal holdings which directly applied in that specific case. Though they did wander off into other territory, these wanderings were in the form of saying what the decision was not intended to do or impact, not how the Constitution should be interpreted in these specific areas.

Still, the 9th Circuit declared not only that Heller did not support Gilbert’s defense, but that it reinforced the lower court’s decision to include the Second Amendment information in the jury instructions. The Circuit Court held that, “Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms.” They went on to conclude that the judge’s comments on the Second Amendment in the jury instructions were correct and proper because Gilbert had improperly asserted that his actions were protected under the Second Amendment.

What the 9th Circuit failed to do, and part of this is the fault of Gilberts attorneys for not making the right arguments, was cite legal evidence for the accuracy of the special jury instructions. For over 70 years courts have based Second Amendment decisions upon a flawed interpretation of the 1936 Miller case. Virtually all of the legal support for the constitutionality of gun control laws lies on the foundation that Miller declared the Second Amendment to only apply to participation in government organized militias. Since Heller clearly declared this position to be void, restoring the Second Amendment as an individual right with no requisite connection to a government militia, all of the previous case law falls apart and can not be used as a basis for limiting Constitutional Rights.

In a footnote within the Heller decision the Court makes an observation that should be reviewed and applied by all judges trying to use Heller or prior case law as justification for limitation of Constitutional rights. The footnote is talking about a case which used Miller as a foundation for its conclusion and this is how the Court responded to that court’s approach:

“It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.”

It is still very early in the judicial life of the Heller decision, but the initial applications of the decision do not bode well for the future. What is particularly disturbing is that the pro-gun legal community doesn’t seem to be particularly bothered by these decisions and is not raising a vocal alarm. Imagine the uproar if courts had used prior case law to support school segregation after the Supreme Court decision in Brown v. Board of Education. Such decisions would not have been allowed to pass quietly into the record for citation in future cases. These decisions using Heller, and precedents invalidated by Heller, should not be allowed to do so either.

Permission to reprint or post this article in its entirety for non-commercial purposes is hereby granted provided this credit is included. Text is available at To receive The Firearms Coalition’s bi-monthly newsletter, The Hard Corps Report, write to PO Box 3313, Manassas, VA 20108.


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