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July 09, 2008

EUGENE VOLOKH PROPERLY CRITICIZES A SLOPPY OPINION BY DISTRICT JUDGE GOMEZ in the Virgin Islands -- it's a post-Heller Second Amendment opinion in which Judge Gomez applies -- clearly outdated -- pre-Heller caselaw:

It may well be that the defendant didn't provide enough argument to support his motion to dismiss. I'm also pretty sure that the courts will find that the right to keep and bear arms isn't substantially burdened by the ban on knowingly possessing a firearm with an obliterated serial number; and they may well uphold the Virgin Islands license requirement, or conclude that only someone who has tried to get a licensed but been denied one is entitled to challenge the requirement.

But the court's reliance on precedent strikes me as quite weak: Rybar was decided by the Third Circuit on the theory that the Second Amendment only protects gun possession when it has a "connection with militia-related activity." Heller rejects that theory, which means that Rybar and Willaman are no longer good law. . . .

So I don't think the district court was entitled to punt the matter to the pre-Heller collective-rights precedent. It needed to do the Heller analysis (or, if appropriate, decline to deal with the Second Amendment question, if the litigant hadn't adequately argued it). And simply saying that under Heller the "right is not unfettered" isn't an adequate justification for the court's decision, either: Obviously some fetters are permissible but others aren't, so the question is why these particular gun controls are justified given the Heller reasoning.

This, alas, is an example of the "desk-clearing mentality" among many federal judges that Judge Gilbert Merritt decried years ago in a Yale Law Journal piece on the bureaucratization of the federal judiciary. I'm afraid we're likely to see a lot of it in the post-Heller world, especially given the lower federal courts' demonstrated hostility to the notion of an individual right to arms. But note that the "collective right" approach, which the pre-Heller lower court caselaw followed, was rejected by all nine Supreme Court Justices. You'd think that would have made some impression on the District Courts. . . .

Meanwhile, Doug Berman comments: "I expect that we will be seeing lots and lots of plausible post-Heller Second Amendment claims brought . . . and lots and lots of (less plausible?) rejections of these claims by lower courts." Yet if lower courts don't conscientiously follow Supreme Court precedent, where does their legitimacy come from?

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