The Second Circuit in Maloney v. Cuomo, and the Seventh Circuit in N.R.A. v. Chicago, say regardless of Heller, the Second Amendment doesn't apply to the states but only to the federal government. The Ninth Circuit, in Nordyke v. King disagrees. Sonia Sotomayor was on the panel that decided Maloney which may make it unlikely that the Court will take that up, but N.R.A. seems a likely pick for a cert. grant.
And then, and with thanks to The Volokh Conspiracy for pointing it out, there's United States v. Engstrum, a case in the United States District Court for the District of Utah. Engstrum addresses 18 U.S.C. 922(g)(9) which makes it a federal crime for a person, say, Rick Engstrum who has been convicted of a misdemeanor offense of domestic violence to possess a firearm. Charged with violating that section, Engstrum moved to dismiss the charges because, since the Second Amendment provides an absolute and unlimited right to keep and bear arms, the prohibition is unconstitutional.
In an opinion in April, Judge Stewart rejected that argument. Heller makes plain, he found, that the Second Amendment right is fundamental, but it's not absolute and it's not unlimited. Applying the strict scrutiny to a statute that infringes a fundamental right, Stewart concluded that 922(g)(9) is constitutional because it entails a presumption that persons convicted of misdemeanor domestic violence pose a prospective risk of violence. However, it follows that the statute would be unconstitutional if applied to a person who poses no prospective risk of violence.
This week, though, the judge decided that if Engstrum can present sufficient evidence that he's not dangerous, the jury will be instructed this way:
The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest. You are instructed that 18 U.S.C. § 922(g)(9), the crime for which Defendant is charged, is, as a matter of law, a lawful and constitutional restriction of the Second Amendment rights of those who pose a prospective, or future, risk of violence.Another time we'll talk about the intellectual dishonest of the Heller decision which reached the right result but for the wrong reason.
If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.
Therefore, if you find that the Defendant did not pose a prospective risk of violence, he may not be deprived of his Second Amendment rights, and you must find him not guilty.
However, if you find that the government has proved beyond a reasonable doubt the elements of the charge against him, and that the Defendant has not proved, by a preponderance of the evidence, that he posed no prospective risk of violence, you must find the Defendant guilty.