Heller After Ten Years*
40 Campbell L. Rev. 361 (2018)
FEBRUARY 1, 2018
Blocher: Moderator, Joseph Blocher
Reynolds: Panelist, Glenn Harlan Reynolds
Henigan: Panelist, Dennis Henigan
Gura: Panelist, Alan Gura
Valone: Participant, Paul Valone
Finkelman: Participant, Paul Finkelman
Denning: Participant, Brannon Denning
Blocher: Hello everyone, and welcome. My name is Joseph Blocher. I teach at Duke Law School, and I’ve been working on Second Amendment issues for almost exactly ten years—the lifespan of Heller, something we’ll talk about for the next two hours. But just to set the stage for our discussion today, and maybe some of the conversation tomorrow, I want to briefly recap some basic aspects of Heller so that we’ve got some shared vocabulary.
In Heller, the Supreme Court held that the Second Amendment right to keep and bear arms extends beyond the organized militia, and it encompasses persons and acts of arms that include certain private purposes, like the use of arms for at least self-defense in the home with a handgun, and potentially a great deal more than that. And in the ten years since Heller, what we’ve seen are lower courts, with one major intervention from the Supreme Court, trying to determine the contours of that right.
And that’s not easy, because at the same time the Supreme Court recognized this right, and then two years later declared it to be fundamental and enforceable against state and local authorities, the court also recognized that the Second Amendment right, like other constitutional rights, is subject to regulation. The Court in Heller listed various forms of regulation it said were presumptively lawful. It didn’t say a whole lot about why, or about what other forms of regulation might be lawful. So in the cases in the last ten years, courts have really been dealing with what one Fourth Circuit judge called a “vast terra incognita,” and trying to map and fill that space.
We’ve had more than a thousand Second Amendment cases in the last ten years—state and federal, trial and appellate—and the doctrine is starting to take shape. So this is really a wonderful time, I think, to be having this conversation. It’s also wonderful that we’re having it here because as the dean said, we’ve got a fantastic panel with which to have that conversation. I’m going to briefly introduce them and then sit back down while they speak.
We’re going to start on the end with Professor Glenn Harlan Reynolds, who is the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. Professor Reynolds is known to many of you, presumably, through his writings online, through Instapundit, and his scholarship, which addresses issues of constitutional law and the relationship between law and technology. He’s been writing about the Second Amendment for at least twenty years—long before Heller was decided. In the mid-nineties, he used the phrase, “Standard Model” to describe the view of the Second Amendment which the court would come to endorse, I think, twelve or thirteen years after Professor Reynolds called that shot. So he can tell us a little bit about the run-up to Heller and sort of the scholarly foundation that he helped lay for the Supreme Court’s decision.
After that, we have Dennis Henigan. Denny is currently the director of legal and regulatory affairs for the Campaign for Tobacco-Free Kids. But before that, for twenty years he was at the Brady Center to Prevent Gun Violence, where he was, among other things, the vice president for legal and policy affairs and helped coordinate legal defense for municipalities and states defending their gun laws against constitutional challenges. He also helped organize pro bono legal support for people challenging irresponsible gun manufacturers and sellers.
And then finally, we have just to my immediate right, Alan Gura. Alan began his legal career here in North Carolina, with a clerkship for Judge Terrence Boyle, in the Eastern District of North Carolina. He then moved to Washington, practiced in private practice and in government, and eventually opened his own private firm, which focuses mostly on civil and appellate matters.
Alan, most notably, argued and prevailed in the Supreme Court’s two landmark Second Amendment decisions. One of those of course was Heller; the other, practically perhaps even more important, is McDonald v. City of Chicago,1 which is the case that made the Second Amendment applicable against state and local governments. Alan is regularly listed among top lawyers, appellate and otherwise, in Washington. Spencer was kind enough to leave this out of my bio, but I was on the litigation team for the district in District of Columbia [v. Heller], so it’s good to see you again, Alan, almost ten years to the day of when we finished briefing the case in which you prevailed. [LAUGHTER]
So, the way we’re going to do this is, I’m going to sit back down, and the panelists in the order I introduced them are going to speak roughly twenty minutes each, then I’ll stand back up; we might have a few questions and some panel discussion, and then we’ll open it up for questions from the audience. So, please do give some thought to what you might ask these true experts in the field.
With that, I’ll pass it over to Professor Reynolds: