The Right to Defensive Arms After District of Columbia v. Heller
Michael P. O'Shea
Oklahoma City University School of Law
March 15, 2009
111 West Virginia Law Review 349 (2009)
This article examines the U.S. Supreme Court's landmark Second Amendment decision in District of Columbia v. Heller (2008), and the scope of the constitutional right to defensive arms that Heller recognizes.
I begin by discussing how Heller refined and altered the sketchy Second Amendment framework bequeathed by United States v. Miller (1939), in order to adopt a broad individual right to arms focused upon personal defense. In particular, I argue, Heller departs from Miller's understanding of the relationship between the Second Amendment right to arms and the civic purposes (deterring tyranny, military readiness, etc.) that are indicated by the Amendment's prefatory clause. Heller recognizes what might be called a nineteenth-century right to arms, one whose clearest prior expression is found in state judicial decisions and other sources from the century following the American founding.
I consider the pros and cons of Heller's personal purpose-centered conception of the right to arms, and its implications for future issues such as Second Amendment incorporation and concealed carry reform. Finally, I consider at length one of the most important adjudicative problems likely to arise under Heller: how to determine which types of novel or contemporary "arms" are protected by the Second Amendment. I argue that courts should rely as much as possible on verifiable, external sources of evidence on this matter, especially the revealed judgments of private citizens and police departments about which arms are worth obtaining today for defense.
NOTE (3/15/09): The previously posted draft version has been replaced by this version, which reflects the final pre-publication galleys.
Number of Pages in PDF File: 45
Keywords: District of Columbia v. Heller, Second Amendment, originalism, incorporation, right to arms, self-defense, defensive weapons, concealed carry, assault weapons
JEL Classification: K1, K3
Date posted: October 21, 2008 ; Last revised: March 25, 2009