Heller, High Water (Mark)? Lower Courts and the New Right to Keep and Bear Arms

In the wake of District of Columbia v. Heller, lower courts have entertained a number of challenges to myriad federal, state, and local gun-control laws. Not surprisingly, given language in Heller seemingly intended to forestall some claims, courts have not, to date, invalidated federal or state gun-control laws that fall short of D.C.\u27s near-prohibition on private gun ownership. While the lower court cases to date confirm our earlier predictions that lower courts would not run wild with Heller, it is not clear that Heller was a purely symbolic victory either. Governments now find themselves legislating in the shadow of Heller; some have repealed gun control ordinances that approach D.C.\u27s in their restrictiveness or modified policies that restricted gun possession for self-defense. Even in the courts, the fact that the Second Amendment now guarantees an individual right means that due process protections attach to attempts to abridge those rights, and courts now construe statutes so as to avoid outright conflicts with the Second Amendment. Further, Heller\u27s protection of an individual right has tended to normalize gun possession, where in the past courts had treated it as an almost-deviant activity existing at the sufferance of government