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updated Nov 23, 2010
By Maria Laus, Author - LawCrossing
11/17/10
In March of this year, a district court upheld the laws using an intermediate scrutiny standard while saying that Heller did not make gun ownership a fundamental right. This finding comes despite language in Scalia's majority opinion reading ''In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.'' The case, colloquially referred to as ''Heller 2'' (Dick Heller is again the lead plaintiff) is now before the appellate court.
The appellate court is being asked to decide five things, the first of which is whether the lower court erred in using an intermediate scrutiny standard to evaluate the law. The other four questions to the court are specific to the DC laws, but this first question has wide application. This case is moving through the court system in tandem with the Benson case which is being decided in the 7th Circuit. It's not clear which case will be decided first and at any rate neither would be controlling on the other. However, if the decisions come back with different interpretations of the holdings in Heller 1 and McDonald it will set the issue up nicely for a return trip to the Supreme Court.
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