Let’s start with the most obvious facts which the Times overlooked. On the day that Heller was decided, the citizens of five Chicago suburbs, and of Chicago itself, were prohibited from owning guns. Residents of apartments provided by the San Francisco Housing Authority were prohibited from owning any gun. Within 24 hours of the Heller decision, gun rights organizations — including the National Rifle Association (NRA) and the Second Amendment Foundation (SAF) — filed lawsuits against the gun bans.
Today, the residents of San Francisco public housing can own guns in their homes. In four of the five Chicago suburbs (Morton Grove, Evanston, Wilmette, and Winnetka), the handgun bans have been repealed. Yet according to the Times, “So far, Heller is firing blanks.”
The Times came that erroneous conclusion, it appears, by credulously relying on UCLA law professor Adam Winkler. The Times quotes Winkler: “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.” The Times does mention one exception to Winkler’s claim, a recent case holding that the federal ban on gun possession by anyone who has been charged (but not convicted) of possessing child pornography is unconstitutional.
But there are many more exceptions that the Times missed. Gun owners have already won in San Francisco, and they won in the four Chicago suburbs.
The Times quoted Winkler: “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.” Yet attorney David Hardy reported in January on his Arms and the Law weblog the San Francisco Housing Authority will be paying the attorneys fees for the plaintiff gun owners there (although the settlement terms of the San Francisco surrender are confidential).
But Winkler (and, derivatively, the Times) does not count or even acknowledge the existence of these victories. Winkler’s database of cases includes only opinions written by federal courts. So if a gun rights group brings a suit in federal district court, or threatens to bring such a suit, and the gun‐banning defendant realizes that defeat is likely, and then the defendant changes its anti‐gun policies, Winkler and the Times ignore the result.
Likewise ignored is a win which does not generate a written opinion published in the Westlaw or Lexis databases. For example, in November, the NRA and SAF filed a lawsuit in federal district court in the Western District of Washington. Washington is the only state in the nation which requires legal resident aliens to obtain a special license in order to possess firearms, and the state licensing division was refusing to issue any alien licenses.
On January 27, the federal court entered a preliminary injunction, ordering the Washington Department of Licensing to resume issuing alien firearms licenses.
Nobody challenged the constitutionality of the state alien licensing law — just the Department’s denial of constitutional rights by failing to carry out the law. So this Second Amendment victory does not count, by Winkler’s hyper‐narrow standard.
It likewise doesn’t count for Winkler (and for the Times) when a defendant successfully invokes the Second Amendment to resist a criminal prosecution. That’s what happened in United States v. Kitsch, decided last August in the federal district court for the Eastern District of Pennsylvania.
In that case, Kitsch had once been an undercover informant for law enforcement officials in New Jersey. The court explained his unusual circumstances: