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The Second Amendment in the Twenty-First Century: What Hath Heller Wrought?

TL;DR: This article explored the impact of the District of Columbia v. Heller decision on the public discourse and found that it is a discourse that will be broken down into two categories: (1) the right's impact on politics and lawmaking or what may otherwise be described as the political discourse, and (2) the opinions of society at large.
Abstract: This article explores the impact District of Columbia v. Heller has had on the public discourse. It is a discourse that will be broken down into two categories: (1) the right’s impact on politics and lawmaking or what may otherwise be described as the political discourse, and (2) the right’s impact on the opinions of society at large or what may otherwise be described as the public discourse. In many respects the two categories are intertwined. For instance, political rhetoric and debate often influence society’s view of what is and is not lawful. At the same time, whatever the judiciary identifies as constitutionally protected impacts society’s perception of historic custom and tradition, regardless of whether it is built on historical fact or historical myth. Still, despite the substantial overlap between Supreme Court opinions and the political and public discourse, it worth exploring the two categories separately. It is only then one can truly assess the impact Heller has had on American society as a whole.
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Posted Content
TL;DR: In this paper, the authors argue that many fundamental rights are not protected by strict scrutiny but by lesser standards or by categorical rules, and that even rights such as speech, free exercise of religion, and privacy do not trigger strict scrutiny only occasionally.
Abstract: This short essay argues that the traditional and often repeated notion that laws burdening fundamental rights receive strict scrutiny is wrong. Many fundamental rights are not protected by strict scrutiny but by lesser standards or by categorical rules. Even rights, such as speech, free exercise of religion, and privacy, which do trigger strict scrutiny only do so occasionally; in many speech, religion, and privacy cases, the courts require the government to meet far less burdensome standards. In short, fundamental rights are governed by strict scrutiny only some of the time.

6 citations

Posted Content
TL;DR: The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation, and is supple enough to respond to the demands of a twenty-first-century judicial system as discussed by the authors.
Abstract: In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable. This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms.

4 citations

Posted Content
TL;DR: In the District of Columbia v. Heller case, the Court held that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in a home operable for the purpose of immediate self-defense.
Abstract: In summarizing his opinion for the Court in District of Columbia v. Heller,' Justice Scalia wrote: "we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Yet, the challenged District of Columbia law did not merely forbid handgun possession in the home; it banned possession of unlicensed handguns anywhere in the District, and because the District prohibited the registration of handguns, the effect of the handgun ban, coupled with restrictions on the storage of licensed long guns, was to forbid most law-abiding private citizens from carrying firearms of any sort anywhere in public.After Heller, can the District enforce its firearms prohibition in public? The question is of more than theoretical interest because tough enforcement of New York City's ban on public possession of firearms may have contributed substantially to the dramatic decline in the City's violent crime rate since the early 1990s. If the right recognized in Heller cannot be limited to the home, then some of the progress New York City has made in fighting crime could be in jeopardy, and more broadly, police departments around the country could lose an important tool-assuming (as I shall for present purposes) that the Court eventually holds that the Fourteenth Amendment incorporates the Second Amendment against the states and their subdivisions.

3 citations

Posted Content
TL;DR: For example, the authors examines the state constitutional law doctrine that has developed around the right to bear arms and finds that the state courts apply an extremely deferential form of judicial scrutiny to laws restricting gun ownership that requires only that such laws be reasonable regulations.
Abstract: This article examines the state constitutional law doctrine that has developed around the right to bear arms. Although the Second Amendment has been likened to a constitutional ghost town, the right to bear arms at the state level is more like a bustling metropolis. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms, and these provisions have been the subject of hundreds of published state court decisions. Yet, the state constitutional doctrine is remarkably consistent and uniform. Without exception, the state courts apply an extremely deferential form of judicial scrutiny to laws restricting gun ownership that requires only that such laws be reasonable regulations. Under that test, which accepts vastly overinclusive laws, only gun measures so extreme as to amount to a complete destruction or evisceration of the underlying right are deemed constitutionally impermissible. As a result, of the hundreds of published state court decisions concerning the right to bear arms, only six have invalidated a gun control law or its application to a particular individual in the past half-century. If that same test is adopted for the Second Amendment, then we can expect that any decision by the Supreme Court reinterpreting that provision to include an individual right to bear arms will have, at best, a marginal impact on the constitutionality of gun control.

3 citations

References
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24 Feb 2003
TL;DR: Ayres et al. as discussed by the authors proposed a hybrid model testing for main and trend effects to compare the results of Zheng and Lott's state and county crime data sets with their own.
Abstract: 1542- TEXT NATIVE 1081374726 4/7/2004 2:59 PM ARTICLES Shooting Down the More Guns, Less Crime Hypothesis Ian Ayres* & John J Donohue III** I NTRODUCTION 102 I T HEORETICAL I SSUES C ONCERNING THE E FFECT OF I NCREASED C ARRYING OF C ONCEALED H ANDGUNS 108 II E MPIRICAL I SSUES IN E STIMATING THE E FFECT OF I NCREASED C ARRYING OF C ONCEALED H ANDGUNS 111 A Introducing Explanatory Variables into the Panel Data Model 115 Model specification 116 Control variables 119 B Comparing the Results Using the Zheng and Lott Controls 120 C Sensitivity of the Lott Results to Time Period and Inclusion of Demographic Controls 123 D Problems with Unequal Years of Data from Early and Late Adopters in the Pre-Post Comparison 127 E Problems with Endogenous State Adoption 129 III M OVING F ROM THE S TATE TO THE C OUNTY D ATA 131 A Lott’s County Data Analysis for 1977-92 133 The dummy variable model 133 Lott’s trend (or spline) Model 134 The hybrid model testing for main and trend effects 135 B Extending Lott’s County Data Through 1997 136 C Replicating Table 10 While Controlling for State Trends 139 IV E STIMATING S TATE -S PECIFIC P ASSAGE E FFECTS 139 * William K Townsend Professor of Law, Yale Law School ianayres@yaleedu ** William H Neukom Professor of Law, Stanford Law School jjd@stanfordedu We thank John Lott and David Mustard for generously sharing their state and county 1977-92 data sets with us David Autor, Nicholas Georgakopoulas, Alan Krueger, Steven Levitt, Thomas Marvell and seminar participants at Harvard, Columbia, and Washington and Lee law schools provided valuable comments Wentong Zheng also shared both his state crime data set and programs, as well as his time, for which we are most appreciative Jennifer Chang, Craig Estes, Melissa Ohsfeldt Landman, David Powell, Matt Spiegelman, Fred Vars, and Nasser Zakariya provided superb research assistance We also gratefully acknowledge the research support we have received from Yale and Stanford Universities

172 citations

Posted Content
TL;DR: The Court's decision in District of Columbia v. Heller as mentioned in this paper was seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution.
Abstract: The Court's decision in District of Columbia v. Heller might be taken in three different ways. First, it might be seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution. Second, it might be seen as analogous to Lochner v. New York, in which a majority of the Court invoked a dubious understanding of the Constitution in order to override the democratic will. Third, it might be taken as analogous to Griswold v. Connecticut, in which a majority of the Court, proceeding in minimalist fashion, used the Constitution to vindicate the contemporary judgments of a national majority. It is true that in emphasizing constitutional text and structure, the Court spoke in terms close to those in Marbury; indeed, Heller is the most self-consciously originalist opinion in the history of the Supreme Court. It is also true that many historians reject the Court's understanding of the Second Amendment, making it plausible to see the ruling as a modern incarnation of Lochner. But the timing and context of the decision suggest that Griswold is the most illuminating analogy. In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier. The claimed analogy between Griswold and Heller fits well with the fact that Heller is a narrow ruling with strong minimalist elements. No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments.

93 citations

Journal Article
TL;DR: The authors reviewed a large amount of evidence from a wide variety of international sources, and found that the persuasiveness of social scientific evidence cannot remotely approach the plausibility of conclusions in the physical sciences, and that those correlations are not observed when a large number of nations are compared across the world.
Abstract: This Article has reviewed a significant amount of evidence from a wide variety of international sources. Each individual portion of evidence is subject to cavil—at the very least the general objection that the persuasiveness of social scientific evidence cannot remotely approach the persuasiveness of conclusions in the physical sciences. Nevertheless the burden of proof rests on the proponents of the more guns equal more death, fewer guns equals less death mantra, especially since they argue public policy ought to be based on that mantra. To bear that burden would at the very least require showing that a large number of nations with more guns have more death and that nations that have imposed stringent gun controls have achieved substantial reductions in criminal violence (or suicide). But those correlations are not observed when a large number of nations are compared across the world.

49 citations

Posted Content
TL;DR: In this paper, the history and effects on crime rates of adoption of "shall issue" concealed weapon permit laws are examined, and the effects of such laws on the crime rate are examined.
Abstract: Examines the history and effects on crime rates of adoption of "shall issue" concealed weapon permit laws.

35 citations

Journal ArticleDOI
TL;DR: In this article, the authors provide an account of how research on gun violence has evolved over the last four decades, intertwined with personal observations and commentary on my contributions, and they focus on how gun availability influences the use of guns in crime and whether the incidence of misuse is influenced by the prevalence of gun ownership, regulations, and law enforcement.
Abstract: In this essay I provide an account of how research on gun violence has evolved over the last four decades, intertwined with personal observations and commentary on my contributions. It begins with a sketch of the twentieth century history of gun control in the United States. I then provide an account of why gun violence is worth studying, with a discussion of how and why the type of weapon used in crime matters, and assess the social costs of the widespread private ownership of firearms. I then detour into the methodological disputes over estimating basic facts relevant to understanding gun use and misuse. In Section IV, I focus on how gun availability influences the use of guns in crime and whether the incidence of misuse is influenced by the prevalence of gun ownership, regulations, and law enforcement. I go on to review evaluations of efforts to focus law enforcement directly at gun use in violent crime. Next I turn to the hottest topic of our day, the role of guns in self-defense and what migh...

25 citations

Trending Questions (1)
What are Dean Heller's political positions?

The paper does not provide any information about Dean Heller's political positions. The paper is about the impact of District of Columbia v. Heller on the public discourse.