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McDonald impact: more state court litigation

Douglas Berman is a professor of law at Moritz College of Law and a frequent blogger at Sentencing Law & Policy.

Even before having a chance to skim the Supreme Court’s important McDonald ruling concerning the application of the Second Amendment to the states, I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms.

As regular readers of this blog know, the vast majority of persons who have sought to expand and extend the Supreme Court’s landmark Second Amendment ruling in Heller in the last two years have not been folks like Otis McDonald, the lead plaintiff in the case decided by the Supreme Court today.  Rather, the most common Second Amendment litigant has been a federal defendant charged with some form of gun possession crime. Though these litigants have not yet had much success when pressing claims that Heller precludes or impacts federal efforts to criminalize certain problematic uses and possession of firearms, they have forced lower federal courts to grapple with the reach and limits of Second Amendment rights in a variety of criminal justice settings.

Now that the Supreme Court has clarified that the Second Amendment applies to the states, there are likely a significant number state criminal defendants who will now start urging state courts to decide that the Second Amendment should block some state prosecutions based on gun possession and use.  And the many divisions in the McDonald opinion probably ensures that lower courts will be divided when ruling on these issues.