In recent years the gun control movement has increasingly shifted its efforts from lobbying for new gun-control legislation to facilitating lawsuits against the gun industry, especially those based on claims of negligent distribution of firearms. These lawsuits are based on the premise that organized gun trafficking, much of it involving corrupt or negligent licensed dealers, plays an important...
Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America
This Article seeks to historicize the meaning of the Second Amendment as well as the constitutional debate now swirling about it in the wake of District of Columbia v. Heller. This Article takes seriously the interpretive significance of the concept of “original public meaning” that figures so prominently in that decision; it seeks to examine—and even to apply—that concept more broadly to the...
The Second Amendment, Heller, and Originalist Jurisprudence
District of Columbia v. Heller gave the Supreme Court an opportunity to apply a jurisprudence of original meaning to the Second Amendment’s manifestly puzzling text. Notwithstanding the Chief Justice’s decision to assign the majority opinion to Justice Scalia, the Court squandered the opportunity. In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily...
The Supreme Court and the Uses of History: District of Columbia v. Heller
The Second Amendment is unusual in that until District of Columbia v. Heller, the Supreme Court had never interpreted the core meaning of the right. But it is that core meaning that, in recent years, has been in dispute. The issue is whether the Amendment was intended to protect a right for individuals to keep and bear arms, as the operative clause implies, or merely a right for states to have a...
The Right to Know: An Approach to Gun Licenses and Public Access to Government Records
Every state has passed laws, often called open records statutes or freedom of information acts, that provide for disclosure of certain information possessed by government agencies. But how does a state legislature decide which information should be subject to disclosure? Is there a discernable pattern in the types of records available to the public? Using concealed carry licenses as the main...
Heller & Originalism’s Dead Hand — In Theory and Practice
This Article considers whether and how originalism promotes the Constitution’s democratic legitimacy, in theory and in practice. In the late twentieth century, critics of the Warren and Burger courts argued that judicial review lacks democratic authority when judges depart from the original understanding of those who ratified the Constitution. Originalism’s critics objected that giving past...
Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda
How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don’t make sense here, just as they don’t fully describe the rules applied to most other constitutional rights. Rather, courts should separately consider four different...
Heller's Catch-22
Joseph Heller’s satire Catch-22 has become a classic for its revealing look at the illogic, inconsistency, and circular reasoning common in modern bureaucratic life. This Article uses Heller’s novel to frame a critical analysis of the recent landmark Second Amendment decision of the U.S. Supreme Court that carries the Catch-22 author’s surname, District of Columbia v. Heller. The majority opinion...