The Second Amendment and the Slow Erosion of Time

By Dave Yost

A year ago, the United State Supreme Court held that the Second Amendment's right to bear arms belongs to individuals, not to state militias. The decision started more legal arguments than it settled, and the battle is still raging in the lower courts.

The Supreme Court decision, District of Columbia v. Heller*, has already produced plenty of litigation. Since it's a Supreme Court case, it can only be overruled by the Supreme Court. But even a Supreme Court decision can lose its authority by the slow erosion of lower court decisions.

A lower court that does not like a binding precedent can look to the facts of the case, and in its opinion, "distinguish" the facts. Once it finds that the facts are different, the binding precedent is no longer binding in the new case.

In its first year, at least 16 lower court cases "distinguished" the holding of Heller, and fifty-two more were decided on the basis that Heller's holding was "limited."

Some of those cases were well-considered, like the felon who tried to overturn his weapons conviction. But other cases contain language that is worrisome.

In a New York case called People v. Perkins, the defendant drew a weapon during an argument and fired two shots. No one was injured, but the defendant was charged with possessing a gun without a license. (A serious offense in New York -- he got eight and a half years in prison for his conviction **. He was not tried on his real crime -- shooting at someone for no better reason than he was angry.)

Perkins claimed that the New York gun licensing statute was unconstitutional under Heller - a question the court dismissed in a single paragraph.

"Unlike the statute at issue in Heller, Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a "severe restriction" improperly infringing upon defendant's Second Amendment rights," the court wrote.

What a remarkable sentence! Only a complete ban on handguns offends the Second Amendment. Let's import that logic into another constitutional right: Only a complete ban on free speech offends the First Amendment. Requiring a license in advance is perfectly OK.

Some regulation of all constitutional rights is permissible -- you can't yell "Fire!" in a crowded theater or block the freeway with your right to freely assmble. New York's strict gun license law deserves a more rigorous examination than just distinguishing the case.

That's how a lower court guts a Supreme Court decision. Just say it's different, and then it is. And it's why the battle to enforce the Second Amendment has only just begun.

* I had the honor to be one of two prosecutors in Ohio to sign an amicus brief in Heller supporting an individual right to bear arms.

** The 8.5 year sentence for illegally possessing a handgun is more than the maximum sentence in Ohio for a drug dealer caught with 99 doses of heroin.

Dave Yost is the Delaware Co., OH prosecuting attorney, and a candidate for Ohio Attorney General. Find out more at DaveYost.com.