To Heller and Back

• Author: Paul H. Blackman,David B. Kopel
• DOI: 10.1177/1043986208329694
• Published date: 01 February 2009
• Date: 01 February 2009
• Subject Matter: Articles

106

Journal of Contemporary

Criminal Justice

Volume25 Number 1

February 2009 106-112

© 2009 Sage Publications

10.1177/1043986208329694

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To Heller and Back

David B. Kopel

Paul H. Blackman

Independence Institute, Golden, Colorado

Extensive legal research confirmed a Standard Model of the Second Amendment: the

Founders’ intended to recognize and protect a preexisting individual right to own and

use firearms for self-defense. Although most gun laws will remain constitutional,

despite their irrelevance to crime control, the Supreme Court’s2008 decision in District

of Columbia v. Heller invalidated the nation’s most restrictive law, which had banned

the possession of handguns and had banned the use of any firearm for home protection.

It remains to be seen whether the Supreme Court will “incorporate” the Second

Amendment in the Fourteenth Amendment so that it limits excessively restrictive state

and local laws as well. Criminologically,Heller will probably lead to an increase in gun

use against home invasions and a possible decrease of such invasions. Unfortunately,

specific data about home invasions are not collected, so the results may be impossible

to measure.

Keywords: Second Amendment; Supreme Court; handguns; firearms; protection;

self-defense; home invasion; District of Columbia; gun control

Thirty years ago, there was almost no legal historical research regarding the

SecondAmendment. Once scholars turnedto the question in earnest, theevidence

in support of an ordinary individual right was overwhelming. The opening clause

about the militia was recognized as typical of early American state constitutions:

announcing an important purpose for the right, but not limiting the right solely to

that purpose (Volokh, 1998). Just as physics has a “Standard Model,” so does the

SecondAmendment; although questions remain about theboundaries, the core right of

individuals to own guns for lawful purposes, including self-defense,is clear (Reynolds,

1995). The majority opinion in District of Columbia v. Heller (2008) follows the

Standard Model.

Prior to Heller, about half the courts that had rejected the Standard Model

claimed that the Second Amendment is only a right of state governments. The claim

is hardto square withthe text affirming“the right of thepeople,”not “of the states.”None

of the nine justices in Heller claimed that the state’s right (also called “the collective

right”) had any support in text, precedent, or history.

Although the collective right theory is defunct, many of the judges who wrote or

joined collective right opinions are still on the bench. Their embrace of the collec-

tive right, despite the absence of evidence, suggests such a visceral hostility to gun

ownership that these judges are unlikely to find any gun control law, no matter how

severe, to be a Second Amendment violation.