And so it continues. Twelve years after Heller, we are in the exact same place. The government cannot ban the possession of handguns in the home, but all other gun control laws are reasonable. Keep in mind that only D.C. and Chicago banned handguns outright. Those rulings effected (sic) only those two laws. That’s it! I am sympathetic to Robby George’s post, which analogized the judicial conservatives on the Court to the Washington Generals.
There have been a handful of favorable decisions in the lower courts, almost all of which were reversed. Justice Thomas praised these jurists:
Consistent with this guidance, many jurists have concluded that text, history, and tradition are dispositive in determining whether a challenged law violates the right to keep and bear arms. See, e.g., Mance v. Sessions (CA5 2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ., dissenting from denial of reh’g en banc); Tyler v. Hillsdale Cty. Sheriff’s Dept. (CA6 2016) (Batchelder, J., concurring in most of judgment); Gowder v. Chicago (ND Ill. 2012); Heller v. District of Columbia, (CADC 2011) (Heller II) (Kavanaugh, J., dissenting).
In Mance v. Sessions, seven judges on the en banc Fifth Circuit were willing to review federal gun control laws with meaningful scrutiny. Seven! But they were a vote short. The Mississippi seat remained empty for far too long, and that vote failed. Soon that seat will be filled.
I am convinced the only way to change the Second Amendment status quo is for the Fifth Circuit, now at full strength, to give the Chief Justices a petition they have to grant. I would much rather lose a 5-4 decision, or 6-3, and know where the Justices stand, than to keep showing up in a fixed match to the Globetrotters.
– Josh Blackman in Twelve Years After Heller