- Professor Josh Blackman, South Texas Law
The Supreme Court's 2008 decision in District of Columbia v. Heller recognized for the first time in our history that individual Americans have a right to gun ownership. Justice Scalia's opinion in Heller is widely regarded as a signal success for his originalist approach to constitutional interpretation. This panel will assess Heller's contribution to the law. How originalist was the opinion? Have the lower courts been faithful in applying Heller to issues outside its narrow holding? Is the Court likely to read Heller broadly or narrowly in the future?
This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.
Civil Rights: The Second Amendment: Enforcing the Heller Decision
12:30 p.m. – 2:45 p.m.
The Mayflower Hotel
In a per curiam opinion issued on March 21, 2016, the Supreme Court vacated and remanded a decision by the Supreme Judicial Court of Massachusetts upholding a state law prohibiting the possession of stun guns, finding that the decision was inconsistent with Supreme Court precedent in District of Columbia v. Heller and McDonald v. Chicago. Justices Alito and Thomas issued a concurring opinion which would have gone further in finding the Massachusetts statute unconstitutional. Our expert discussed the case and its implications for the Court’s Second Amendment jurisprudence going forward.
The “residual clause” of the Armed Career Criminal Act requires a mandatory minimum fifteen-year sentence for anyone who has three prior “violent felony” convictions and is found to unlawfully possess a firearm. This clause has been addressed at the Supreme Court on numerous occasions in recent years, with Justice Scalia suggesting that it is unconstitutionally vague. The Supreme Court heard oral arguments in Johnson v. United States in November with no mention of the question, and after two months of silence re-scheduled the case for additional argument and instructed the parties to address this question directly. Many Court-watchers have suggested that there may now be five votes on the Court to declare the residual clause unconstitutionally vague.
On Janurary 22, 2014, the Supreme Court heard oral argument in Abramski v. United States. This case concerns 18 U.S.C. § 922(a)(6), a federal criminal statute that prohibits a person who buys a firearm, intending later to sell it to another person, from falsely making a statement about the identity of the ultimate purchaser that is “material to the lawfulness of the sale.” The question before the Court is twofold: (1) Is the initial purchaser’s intent to sell a firearm to another lawful purchaser in the future a fact “material to the lawfulness of the sale”?; and (2) Is such an intent a piece of information “required . . . to be kept” by a federally licensed firearm dealer under the same statute?
To discuss the case, we have Ken Klukowski, who is on faculty at Liberty University and is a Senior Legal Analyst at Breitbart News. He formerly worked for the National Rifle Association and was involved in the last two Second Amendment cases that went through the Supreme Court.