Second Amendment Federalism
49 Pages Posted: 12 Jan 2021 Last revised: 31 Mar 2021
Date Written: March 31, 2021
In the decade since District of Columbia v. Heller, the paradigm-shifting 2008 Supreme Court case affirming the right of individuals to keep handguns in the home for self-defense, lower courts have struggled to reconcile the case’s broad conception of the Second Amendment with longstanding restrictions on the keeping and bearing of firearms. A burgeoning literature has urged courts and scholars to approach this tension with an eye toward Heller’s repeated proclamations that self-defense is the “central component” of the Second Amendment right, suggesting that principles of common law self-defense may offer insight into the scope of the Amendment’s protections. Examining self-defense law as a U.S. tradition, this Note contends that the right to self-preservation has evolved significantly from its common law origins, with different states adopting different standards, procedures, and definitions over time. This diversity makes it difficult to extract universal principles of self-defense law for purposes of shaping Second Amendment doctrine.
But even as the law has changed across time and jurisdictions, federal courts have been consistent in allowing states to define the contours of the self-defense right. Therefore, courts today should recognize self-defense law as a site of iterative policy development, and treat laws regulating the instrumentalities of self-defense (for example, firearms) with a degree of deference. This Note argues that this approach, which I term “Second Amendment Federalism,” comports with the dictates of Heller and provides a roadmap for doctrinal development.
Note: By permission of the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Review at 73 STAN. L. REV. (forthcoming 2021).
Keywords: Constitutional Law, Second Amendment, Federalism, Heller, Gun Policy
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