So, the Heller revolution may have legs after all.  In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court breathed new life into the moribund Second Amendment, holding that there is indeed an individual right to bear arms.  Heller seemed to mark a major shift in Second Amendment jurisprudence and cast a shadow over much gun control legislation.  On the other hand, the Heller Court was remarkably coy about many aspects of the individual right to bear arms, leaving open the possibility that Heller would prove no more than a flash in the pan.

When Heller was decided, I was reminded of United States v. Lopez, 514 U.S. 549 (1995), in which the Court seemed to overturn a half-century of precedent on the scope of Congress’s Commerce Clause power.  A revolution (or, perhaps more accurately, a counter-revolution) seemed afoot.  I was a law student then, and I vividly recall — just hours after Lopez was handed down — one of my professors announcing in class, only half facetiously, that the Supreme Court had just overturned the New Deal.  Then, when I clerked for a federal judge after law school, I recall several defendants raising Lopez challenges to federal criminal statutes.  But it all came to nought.  The lower federal courts never really bought into the Lopez revolution — if you keycite Lopez today, you will see 267 cases listed as either declining to extend or distinguishing Lopez — and the Supreme Court itself effectively threw in the towel with its decision in Gonzales v. Raich, 545 U.S. 1 (2005).

I have been wondering if the Heller revolution would go the way of the Lopez revolution.  And, indeed, it has seemed generally to be business as usual in the circuit courts post-Heller, with little sense that the intermediate appellate judges have any inclination to read Heller for all it is worth.

But the Seventh Circuit’s decision last week in United States v. Skoien (No. 08-3770) (Sykes, J.) suggests that Heller may have more life than Lopez.