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Reynolds & Denning on Heller's future
Prof.s Glenn Harlan Reynolds and Brannon Denning have an article in Northwestern Univ. Law Rev. on the future of Heller.
The question is whether the case becomes, essentially, what it should be: the recognition of a Constitutional right, and the beginning of an entire branch of Con law, or whether it may go the route of the Lopez case. In Lopez, the Court struck down the Federal gun-free school zone law because, in limiting simple possession, it had no basis in the interstate commerce power. But the lower courts resisted this, and essentially said "okay, so that statute is invalid. But any other ban on possessing something will be upheld, no matter how flimsy the connection to interstate commerce."
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Here's law review article, while not discussing Heller, it presents a possible threat from the States to Heller's legal standing in the future:
Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, Maryland Law Review, Vol. 66, No. 3, 2007
Available at SSRN.com
And like the authors said, the Supremes gave us Lopez. OK, fine, as far as it goes. And some lower courts did go along with that and we had some decisions in the non-commercial child porn area where the courts said that the mere fact that film and cameras traveled in inter-state commerce did not give the Congress Commerce Clause authority to ban the non-commercial making and possessing of child porn. Then the Stewart machine gun decision came out of the 9th Circuit, which said that the Congress lack Commerce Clause authority to ban the home manufacture of a machine gun.
But then along came Raich and the Supremes pulled the rug out from under the whole darned thing. The Court had a chance in Raich to re-affirm Lopez and let all the lower courts know that it was serious about limitations on the Commerce Clause. But noooooooooooooo.