There was much specualtion right after the Supreme Court came down with their decision in DC v. Heller as to how the decision would be interpreted and implemented by the lower courts.  Some insisted that Heller's clear declaration of the Second Amendment protecting an individual right with no conection to militia service would revolutionize the whole argument and result in the toppling of gun laws like dominoes.  Others worried that the things intentionally left out of, and excluded from Heller would result in radical interpretations bolstering existing and future laws and doing more harm than good.

    If the cases which referrenced Heller in the first two months after its announcement are any indication, the gloom and doomers were closer to right than the sunshine and roses folks.  While there hasn't been much in the way of outrageous misuse of Heller, neither has there been much in the way of recognition of the rights and protections recognized in the case.  The most disturbing result has been a tendency of courts to continue to use precedents which were founded on the premise that the Second Amendment is a "collective right."  Such precedents should no longer be considered as they are in conflict with the holding in Heller, but courts are still using them.  They are also ignoring the gaps that removing those cases leave.  The Federal Appeals court for the 9th Circuit recently supported a lower court's decision to include specific information about the Second Amendment in their instructions to a jury.  The instructions read as follows:

     “A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.”

    Neither the trial court nor the appeals court explained where these "facts of law" were derived.  The merely explained that Heller did not reverse them.  While this is a correct interpretation of Heller directly, it does not answer the core question: What is that statement based on?  Heller specifically declined to address such issues directly in their holding, but the holding did change a principle that has been fundamental to the sustinance of gun control laws for 70 years, the notion that the Second Amendment only applies to members of State Militias subject to government regulation.  Remove those discredited precedents and what is left to support the notion that the Second Amendment does not protect rights to own machineguns?  Just because Heller dodged the issue does not give other courts the right to ignore it too.

    To read about the cases which Heller has impacted so far, click here to go to Eugene Volokh's excellent web page.