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Second Amendment Minimalism: Heller as Griswold

Cass R. Sunstein

Harvard Law School

August 5, 2008

Harvard Law Review, Forthcoming
U of Chicago Law & Economics, Olin Working Paper No. 419
U of Chicago, Public Law Working Paper No. 224
Harvard Public Law Working Paper No. 08-21

The Court's decision in District of Columbia v. Heller might be taken in three different ways. First, it might be seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution. Second, it might be seen as analogous to Lochner v. New York, in which a majority of the Court invoked a dubious understanding of the Constitution in order to override the democratic will. Third, it might be taken as analogous to Griswold v. Connecticut, in which a majority of the Court, proceeding in minimalist fashion, used the Constitution to vindicate the contemporary judgments of a national majority. It is true that in emphasizing constitutional text and structure, the Court spoke in terms close to those in Marbury; indeed, Heller is the most self-consciously originalist opinion in the history of the Supreme Court. It is also true that many historians reject the Court's understanding of the Second Amendment, making it plausible to see the ruling as a modern incarnation of Lochner. But the timing and context of the decision suggest that Griswold is the most illuminating analogy. In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier. The claimed analogy between Griswold and Heller fits well with the fact that Heller is a narrow ruling with strong minimalist elements. No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments.

Number of Pages in PDF File: 27

Keywords: minimalism, gun control, originalism, second amendment

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Date posted: August 6, 2008 ; Last revised: November 11, 2008

Suggested Citation

Sunstein, Cass R., Second Amendment Minimalism: Heller as Griswold (August 5, 2008). Harvard Law Review, Forthcoming; U of Chicago Law & Economics, Olin Working Paper No. 419; U of Chicago, Public Law Working Paper No. 224; Harvard Public Law Working Paper No. 08-21. Available at SSRN: http://ssrn.com/abstract=1204942

Contact Information

Cass R. Sunstein (Contact Author)
Harvard Law School ( email )
1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)
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