Five Takes on District of Columbia v. Heller
30 Pages Posted: 8 Feb 2009 Last revised: 10 Aug 2009
Date Written: February 8, 2009
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
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