Resistance by Inferior Courts to Supreme Court’s Second Amendment Decisions

by Alice Marie Beard

In the wake of the Supreme Court’s District of Columbia v. Heller (“Heller I”) and McDonald v. Chicago decisions that clarify, expand, and protect Second Amendment rights, federal and state inferior courts have been engaging in massive resistance. The Wall Street Journal noted in an editorial that politicians have been calling for legislation that would disregard the Supreme Court and would be “not unlike the massive resistance in some Southern states that followed Brown v. Board of Education in 1954.” After McDonald, one circuit court judge labeled Chicago’s response as a “thumbing of the municipal nose at the Supreme Court.” It is the duty of courts to prevent such resistance, but the courts have failed thus far. Massive resistance may be too strong of a term to apply to the case law from inferior federal and state courts interpreting the civil right to keep and bear arms in the wake of Heller I and McDonald, but simple resistance seems appropriate.

This Article will discuss the holdings in Heller I and McDonald; examples of the misapplication of those decisions by federal and state inferior courts; the impact of scholarship on the courts; and legislative solutions. This Article will also posit that, with the passage of time and attendant cultural changes, the composition of the bench is likely to result in the Second Amendment no longer being treated as a second class right.

 

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