Second Shot at the Second Amendment: Could Heller Be Undone by an Errant Qualifier?

Many of us are gearing up with columns previewing the Court’s October term and have highlighted the upcoming arguments over bans on AR-15s and semiautomatic weapons out of the Seventh Circuit in Chicago (Viramontes v. Cook County) and the Second Circuit in New York (Grant v. Higgins).

In a recent column, Professor Rory Little suggests that these cases will strike at what he considers a glaring flaw in the Heller decision that recognized the individual right under the Second Amendment. Professor Little repeats a common claim about Heller that some of us have challenged. I wanted to briefly address that controversy again.The column appeared in Scotusblog, a respected site that offers tracking and commentary on pending Supreme Court cases.  Here is the portion that I wanted to address:

The 2008 Heller decision, which changed precedent to find a Second Amendment right to own handguns for self-defense, was decided 5-4. To me (and others) it is clear that Justice Antonin Scalia had to include various qualifiers in his opinion, or he would have lost one or two of his five votes and Heller would have come out differently.

Part III of the opinion was clearly added to capture, or keep, the narrow but earth-shattering majority, and ought to be viewed as the binding judgement of the court. Specifically, in addition to listing various “longstanding prohibitions on the possession of firearms” left undisturbed, part III said “we also recognize another important limitation on the right to keep and carry arms. … the sorts of weapons protected were those ‘in common use at the time’” (quoting United States v.Miller, a 1939 precedent upholding bans on machine guns).

I add emphasis on “at the time,” because the Viramontes briefing all but ignores what the court said was this “important limitation.”

As the solicitor general’s brief notes, “the AR-15 rifle was developed in 1956,” and the first semiautomatic rifle of any kind was sold in 1903. Thus, while they may be the “most commonly owned rifle[] in America” today (albeit by less than 10% of all Americans), semi-automatic rifles were undisputedly not in common use “at the time” the Second Amendment was adopted in 1791.

Indeed, as the SG’s brief also explains, it is the modern technological developments in the AR-15 that makes it popular today. (This is also why they are commonly used in mass-shootings.) Rather, the solicitor general’s Viramontes brief subtly changes the language, saying (on page 21) that the proper Second Amendment test is whether AR-15s “are in common use” today (again, my emphasis).

This radically departs from the doctrinal limits that were essential to cementing the Heller result. In his 2025 dissent from denial of certiorari, Kavanaugh (joined by Justice Samuel Alito) adopted this same semantic transfiguration of Heller (changing “were” to “are”) – an error (or strategy) presaged in Kavanaugh’s 2011 Circuit judge dissent when Heller was remanded in 2011.

Many folks will be listening on Dec. 2 to see whether a majority of justices will agree that Heller did not actually mean what it appeared to say.

As others have noted, this is an old saw repeated by many critics of Heller.

Justice Scalia anticipated this argument in the actual Heller decision. He wrote:

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.

We do not interpret constitutional rights that way…Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

As I recently discussed in a column, this issue came up nine years ago when Massachusetts attempted to ban stun guns. The Court issued a per curiam opinion in Caetano v. Commonwealth of Massachusetts that sent back a case to the First Circuit and rejected the logic that they were not in common use at the time of the Second Amendment’s enactment. The Court pointed out that in District of Columbia v. Heller, 554 U. S. 570, 582 (2008), it expressly rejected that argument and held that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” It also rejected two other rationales. (Notably, the Court is considering another stun gun case in Calce v. New York after the Second Circuit failed to heed the warning of the Court).

Notably, a new challenge has been filed in Connecticut over a ban of convertible handguns. It is likely to raise many of these same issues. The Firearm Industry Trade Association filed a lawsuit this week that will be before the district court as the Supreme Court hears arguments on the two pending cases.

I obviously disagree with Professor Little and other experts who raise this claim. There are, of course, good-faith arguments against the Heller decision. Some like Professor Little view that decision as “earth-shattering.” I do not. I still believe the Court was correct in viewing this as an individual right. However, I do not believe that this claim of a glaring and hypocritical contradiction between Heller and later cases is fair or supported. There was no sleight of hand in “changing ‘were’ to ‘are.’”

This really does not come down to a change in verbs. While many hope that packing the Supreme Court will result in an immediate reversal of Heller, it is unlikely to turn on the word “were.”

Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”


…The resolution would not have banned Flock cameras, but would have directed the city manager to conduct a review of the city’s contracts, guidelines and policies for the technology. By referring the resolution to a committee, the City Council prevented a public hearing from being held on the matter.

As I have stood in the crosshairs of those who target Second Amendment freedoms, I’ve realized that firearms are not the only issue. No, it’s much, much bigger than that. I’ve come to understand that a cultural war is raging across our land, in which, with Orwellian fervor, certain acceptable thoughts and speech are mandated.
— Charlton Heston

An old flame of mine passed away several years ago from this, so it strikes pretty close

Researchers Test a New Way To Find Pancreatic Cancer Before It’s Too Late.

An experimental blood test could help detect early pancreatic cancer and precancerous changes, guiding decisions about further testing.

People at high risk of pancreatic cancer are often monitored with imaging and other tests that can be invasive, expensive, and limited in their ability to catch the disease early. An experimental blood test called PANXEON could give doctors another way to look for cancer while it is more treatable and potentially curable.

In an international study led by researchers at City of Hope, PANXEON correctly identified stage 1 and 2 pancreatic cancer 87% of the time. The study, published in Nature Medicine, evaluated the test in nearly 1,800 patients across the United States, Europe, and Asia to see whether earlier promising results would hold up across different clinical settings.

Finding pancreatic cancer early remains a major challenge. About 90% of patients are diagnosed at advanced stages, when their cancer has already spread. The disease has the lowest survival rate of any cancer, with just 14% of patients living five years after diagnosis.

Detecting precancerous changes in the pancreas

PANXEON also detected more than 64% of cases of high-grade dysplasia, an advanced precancerous condition of the pancreas often described as “stage 0” pancreatic cancer. Detecting these changes could help doctors determine which pancreatic cysts need active monitoring or intervention before invasive cancer develops.

“A stage shift is not just a statistic,” said senior author Ajay Goel, Ph.D., AGAF, chair of the Department of Molecular Diagnostics and Experimental Therapeutics at City of Hope. “The earlier we find pancreatic cancer, the greater the chance that meaningful intervention is still possible.”

More false positives in high-risk groups

The study included people with inherited genetic risk, a family history of pancreatic cancer, pancreatic cysts, or chronic pancreatitis, which is persistent inflammation of the pancreas. These are also the groups most likely to benefit from a blood test that helps guide further evaluation. Goel said testing PANXEON in these patients, rather than comparing cancer patients only with healthy controls, was a key distinction from earlier research.

The test’s rate of false positives depended on the group being tested. It incorrectly flagged cancer in 3% of people without cancer in low-risk groups and 16% of those in high-risk groups. Goel said PANXEON could help identify high-risk patients who need additional evaluation, alongside imaging and other diagnostic tests.

“Pancreatic cancer remains so deadly largely because we find it after the window for cure has begun to close,” Goel said. “For patients, these findings represent progress toward finding pancreatic cancer before symptoms appear and while more treatment options remain available.”

Previous efforts to develop blood tests for early pancreatic cancer detection have fallen short. PANXEON takes an approach that combines three biological signals, or biomarkers, in a blood sample.

Two involve microRNAs, small molecules that help regulate gene activity. The test measures both circulating microRNAs and exosomal microRNAs, which are carried inside tiny packages released by cells. It also measures a protein called CA19-9.

Artificial intelligence combines those measurements into a single score estimating the patient’s risk. PANXEON is the first investigational test to bring these three biomarkers together, an approach Goel identified as another feature that distinguishes it from earlier tests.

“Most biomarkers tell you one part of the story. Combining multiple biological signals gives us a clearer picture of what may be happening in the pancreas,” he said.

Reference: “Liquid biopsy for early detection of pancreatic ductal adenocarcinoma” by Caiming Xu, Alessandro Mannucci, Haiyong Han, Ruben M. Munoz, Derek Cridebring, Sourat Darabi, Yuji Toiyama, Yoshinaga Okugawa, Gagandeep Singh, Mustafa Raoof, Joon Oh Park, James Lin, Gregory Idos, Michael J. Demeure, Erkut Borazanci, Douglas B. Evans, Susan Tsai, Eunsung Jun, Carlos Becerra, Scott A. Celinski, Laleh Melstrom, Vincent Chung, Guixin Zhang, Dong Shang, David L. Bartlett, Mitsuro Kanda, Song Cheol Kim, Valsamo Anagnastou, Giulia Martina Cavestro, John S. Bolton, Ali H. Zaidi, Daniel Von Hoff and Ajay Goel, 16 September 2026, Nature Medicine.
DOI: 10.1038/s41591-026-04625-x

Supported by The National Institutes of Health / National Cancer Institute (CA72851, CA181572, CA184792, CA187956, CA202797, CA214254, CA271443), and the Italian Association for Cancer Research (start-up #32233).

New Jersey Faces Lawsuit Over Knife, Baseball Bat Ban For Self-Defense

pro-Second Amendment group led a lawsuit Monday seeking to have New Jersey’s laws barring the carrying of items like baseball bats and knives for self-defense thrown out.

The Association of New Jersey Rifle & Pistol Clubs and Knife Rights filed the lawsuit on behalf of four individual plaintiffs, arguing that by prohibiting the use of items other than firearms for self-defense, New Jersey was violating the Second Amendment rights of residents. The complaint said that the state has been in “panic mode” since the Supreme Court’s decision in Heller v. District of Columbia.

“New Jersey demands that its citizens be defenseless when they go about their day in public. Defenseless. Until forced to issue Permits to Carry a Handgun by the Bruen decision in 2022, New Jersey banned its citizens from carrying any weapon for self-defense,” the complaint filed Monday says. “Still today, New Jerseyans cannot carry any ordinary object for protection against violent crime, not a baseball bat, not a stick, not a knife, not a pair of scissors, not anything. If a person keeps an ordinary baseball bat in her car or if she keeps a small baton (sometimes called a kuboton) on her keychain she can find herself arrested and thrown in prison under New Jersey law.”

“The Second Amendment protects all common arms not just guns. There are many situations in which a person may prefer to defend against violent attack with something other than a firearm,” the legal filing continued. “New Jersey does not allow that. This is how a single mom using a carpet cutter to defend herself and her young daughter against a violent and potentially fatal beating found herself a convicted felon.”

In a 1990 decision from the New Jersey Supreme Court, the conviction of a single mother for carrying a carpet cutter and using it to protect herself when an ex-boyfriend was beating her was upheld.

The Supreme Court has already ruled on non-firearms being protected, issuing a unanimous ruling in Caetano v. Massachusetts that held that stun guns were protected by the Second Amendment. While the main opinion was unsigned (also known as a “per curiam” opinion), a concurrence from Associate Justice Samuel Alito went into more detail.

“A weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself,” Alito wrote in a separate opinion. “Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.”

“The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself,” Alito added. “To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.”

Second Amendment Foundation President Massad Ayoob, who has decades of experience as a law enforcement officer, firearms instructor and an expert witness in the use of force for self-defense, explained why many states tend to treat knives and other items more stringently in self-defense cases in an August interview with the Daily Caller News Foundation.

“Historically, the pistol was seen as the weapon that would be chosen by the lady or the gentleman and the knife and the club were seen as the weapons of the thug and there’s a little bit of that yet today,” Ayoob said.

NH School District Admits Unconstitutional Search of Student’s Vehicle

Because a New Hampshire teen legally owned a pistol and sometimes kept it in the glove compartment of his truck…, school officials conducted a warrantless search of the vehicle without his consent last year. They have acknowledged it was an unconstitutional search in a court agreement.

School officials in New Hampshire have acknowledged they conducted an unconstitutional search of a student’s vehicle in 2025, because he legally owned a handgun—which was not in the vehicle, nor was it ever brought to the grounds of Hillsboro-Deering High School—in full compliance with federal and state laws.

According to the Second Amendment Foundation, which filed a federal civil rights lawsuit last October on behalf of plaintiff Jack Harrington, the search was conducted “solely on the basis of school officials learning that Harrington lawfully owned a firearm in his personal life.”

The case is known as Harrington v. Crawford. The case was filed in U.S. District Court for the District of New Hampshire.

According to a stipulated declaratory judgment, “A search of a student’s person, property, or vehicle based solely on the exercise of a constitutional or legal right, including the fundamental right to keep and bears arms guaranteed under the Second Amendment to the U.S. Constitution (U.S. CONST. amend. II), which encompasses and includes the right to carry, store, or transport a handgun a vehicle or in the glove box of a vehicle, would constitute an unconstitutional and illegal search in violation of the Fourth Amendment to the U.S. Constitution.”

This search occurred after Harrington apparently mentioned his gun ownership to another student while riding in a bus enroute to a game.

Continue reading “”

Police: Uber Eats driver shoots armed man in self-defense
Investigators say an Uber Eats delivery driver shot a man in what appears to be self-defense outside a Pollo Tropical in Port St. Lucie

Investigators say an Uber Eats delivery driver shot a man in what appears to be self-defense outside a Pollo Tropical in Port St. Lucie.

The Port St. Lucie Police Department said officers responded around 3:43 p.m. Saturday, Sept. 19, to the restaurant at 1365 NW St. Lucie West Blvd. after receiving reports of a shooting.

Officers found Christopher Harris, 37, suffering from a gunshot wound to his chest. He was flown to HCA Florida Lawnwood Hospital, where officials say his injuries were determined to be non-life-threatening.

According to Port St. Lucie Police Chief Leo Niemczyk, the man who fired the shot is an Uber Eats delivery driver.

Niemczyk told WPBF 25 News the incident started over a parking spot.

“He [Harris] pursued him inside. There was a little interaction in the doorway entrance. The Uber Eats driver went inside, picked up his order, went out, and the other person pursued him outside, shoved him and pulled out what appeared to be a knife, what was identified to be a knife,” he said.

Niemczyk said the Uber Eats driver shot Harris once in the chest.

“Christopher Harris. He was the aggressor. He pursued the other individual. He followed him back outside. He shoved him. He pulled out a weapon,” Niemczyk told WPBF.

He said that justifies the man who pulled the trigger defending himself.

“It’s self-defense. It also fits the stand-your-ground rule because he is being pursued. He has no duty to retreat. In fact, he did try to retreat. He did try to avoid the situation, but he was pursued. So 100%, he turned around and used appropriate action. He met deadly force, being a knife, with deadly force by firing one round. It appears to be 100% justifiable,” Niemczyk said.

After being shot, officials say Harris went back inside the restaurant, where people began providing aid and called 911.

Investigators said one knife was recovered after it had been removed from Harris’ waistband while people were helping him. Police said another knife was later found in his front pocket.

Harris is facing charges of attempted aggravated battery with a deadly weapon and felony battery based on a prior battery conviction. Officials say once he is released from the hospital, they expect him to be booked in the St. Lucie County Jail.

The Uber Eats driver is not facing criminal charges in the case.