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Five Takes on District of Columbia v. Heller

30 Pages Posted: 8 Feb 2009 Last revised: 10 Aug 2009

Brannon P. Denning

Samford University - Cumberland School of Law

Glenn Harlan Reynolds

University of Tennessee College of Law

Date Written: February 8, 2009

Abstract

Part of an Ohio State Law Journal symposium on the Supreme Court's decision finding an individual right to arms in District of Columbia v. Heller, this article offers five takes on what the Heller decision might mean, and how it may play out in lower courts. First, we argue that Heller essentially followed the prevailing national consensus on the meaning of the Second Amendment. Second, we argue that this fact furnishes an important data point for those who argue that the Court usually follows, rather than leads, public opinion on disputed matters; and that, when it invalidates laws, it does so with respect to policy outliers. Third, we speculate on what has already opened up as the second front in gun rights litigation strategy: the incorporation of the Second Amendment through the Fourteenth Amendment. Fourth, we discuss how lower courts will likely treat Heller-will they apply it or, as has happened with other "landmark" Supreme Court cases, ignore it? Finally, we discuss the notable incongruities among the Justices that Heller produced.

Keywords: second amendment, keep and bear arms, gun control, heller

Suggested Citation

Denning, Brannon P. and Reynolds, Glenn Harlan, Five Takes on District of Columbia v. Heller (February 8, 2009). Ohio State Law Journal, Vol. 69, No. 671, 2008; University of Tennessee Legal Studies Research Paper No. 67. Available at SSRN: https://ssrn.com/abstract=1339578

Brannon P. Denning

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

Glenn Harlan Reynolds (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996-1810
United States
865-974-6744 (Phone)

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