Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit

Abstract:     
This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller. Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: laws disarming felons; laws disarming the mentally ill; laws prohibiting the possession of firearms in sensitive places; and laws regulating the commercial sale of firearms. The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ. The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny. Accordingly, some lesser standard of review of firearms regulation must apply.

Keywords: Second Amendment, gun control, originalism

Accepted Paper Series