The Heller Paradox


In this Article, I argue that the Heller majority, in discovering a new Second Amendment right to possess guns for personal self-defense, engaged in an unprincipled abuse of judicial power in pursuit of an ideological objective. The ideological nature of Justice Scalia’s opinion is revealed in his inconsistent brand of textualism, in which Scalia’s own longtime insistence on the importance of context is cast aside as he interprets “the right of the people to keep and bear Arms” by divorcing it from its particular context in the Second Amendment. The majority’s ideological approach is further revealed by Scalia’s selective manipulation of the relevant historical record, particularly his dismissal of key elements of the Amendment’s legislative history, misleading account of analogous state right-to-bear-arms guarantees, and misunderstanding of the “well regulated Militia.” I find the majority opinion a paradox. Although its interpretation of the Second Amendment is driven by ideology, the opinion nevertheless is unlikely to pose a substantial constitutional threat to gun regulation and may actually weaken the Second Amendment as an argument against the adoption of new gun control laws. Finally, Heller, by taking a general gun ban “off the table” as a policy option, may eventually weaken the gun lobby’s use of the slippery slope argument to frame the gun control debate in cultural terms, allowing a greater focus on the public safety benefits of specific reforms designed to reduce access to guns by dangerous persons.

About the Author

A.B. Oberlin College (1973), J.D. University of Virginia School of Law (1977). Vice President for Law and Policy, Brady Center to Prevent Gun Violence, Washington, D.C. and author of Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009).

By uclalaw