To Heller and Back

Date01 February 2009
Published date01 February 2009
Subject MatterArticles
Journal of Contemporary
Criminal Justice
Volume25 Number 1
February 2009 106-112
© 2009 Sage Publications
hosted at
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.

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