An Unstable Core: Self-Defense and the Second Amendment

44 Pages Posted: 3 Mar 2020 Last revised: 4 Mar 2020

Date Written: March 3, 2020

Abstract

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially or not at all. Some courts, however, have run to the opposite extreme, leaning heavily on the platitude that firearms have utility for lawful self-defense as a rationale for effectively immunizing them from regulation. This Article examines that inconsistency and considers whether self-defense law itself could provide stability and much-needed guidance for when, how, and which weapons receive constitutional protection. This exercise finds support in both Heller and historical precedent, and offers a helpful lens through which to consider the intersection of the Second Amendment and its stated self-defense purpose. At the same time, however, it exposes a tension within Heller, calling into question whether a Second Amendment grounded in self-defense gives more protection to handguns than to less lethal alternatives.

Keywords: Second Amendment, criminal law, individual rights, Heller

Suggested Citation

Ruben, Eric, An Unstable Core: Self-Defense and the Second Amendment (March 3, 2020). California Law Review, Vol. 108, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3548104

Eric Ruben (Contact Author)

SMU Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
78
Abstract Views
468
rank
334,803
PlumX Metrics