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Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford: Oxford University Press, 2008)
Saul Cornell, “Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” Ohio State Law Journal 69 (2008): 625-640
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Stephen Halbrook, “What the Framers Intended: A Linguistic Analysis of the Right to ‘Bear Arms’,” Law and Contemporary Problems 49 (Winter 1986): 161-162
Jennifer Hansler and Paola Chavez, “2016 Candidates React to Obama’s Gun Control Measures,” ABC News, 5 January 2016 (http://abcnews.go.com/Politics/2016-candidates-react-obamas-gun-control-measures/story?id=36097217)
Dennis Henigan, “The Heller Paradox,” UCLA Law Review 59 (June 2009): 1171-1210
Christopher Ingraham, “Shooting in Oregon: So Far in 2015 We’ve Had 274 Days and 294 Mass Shootings,” Washington Post, 1 October 2015 (https://www.washingtonpost.com/news/wonk/wp/2015/10/01/2015-274-days-294-mass-shootings-hundreds-dead)
Jeffrey Jones, “Americans in Agreement With Supreme Court on Gun Rights,” Gallup, 26 June 2008 (http://www.gallup.com/poll/108394/Americans-Agreement-Supreme-Court-Gun-Rights.aspx)
Don Kates Jr., “The Second Amendment and the Ideology of Self-Protection,” Constitutional Commentary 9 (Winter 1992): 87-104
Don Kates, “A Modern Historiography of the Second Amendment,” UCLA Law Review 56 (June 2009): 1211-1232
Richard Kay, “Original Intention and Public Meaning in Constitutional Interpretation,” Northwestern University Law Review 103 (Spring 2009): 703-726
David Konig, “Arms and the Man: What Did the Right to ‘Keep’ Arms Mean in the Early Republic?” Law and History Review 25 (Spring 2007): 177-185
Law Center to Prevent Gun Violence, “Post-Heller Litigation Summary: 31 March 2015,” (http://smartgunlaws.org/post-heller-litigation-summary)
Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1980): 637-659
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Nelson Lund, “Book Review: Outsider Voices on Guns and the Constitution,” Constitutional Commentary 17 (Winter 2000): 701-720
Nelson Lund, “Civil Rights: The Heller Case – Minutes From a Convention of the Federalist Society,” New York University Journal of Law and Liberty 4 (2009): 293-329
Joyce Lee Malcolm, “The Supreme Court and the Uses of History: District of Columbia v. Heller,” UCLA Law Review 56 (June 2009): 1377-1398
Kevin McGuire and James Stimson, “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences,” The Journal of Politics 66 (November 2004): 1018-1035
Edwin Meese III, “Toward a Jurisprudence of Original Intent,” Harvard Journal of Law and Public Policy (Winter 1988): 5-12
National Rifle Association, “Heller: The Supreme Decision,” 27 June 2008 (https://www.nraila.org/articles/20080627/heller)
“Obama Admits US Gun Laws Are His ‘Biggest Frustration’,” BBC, 24 July 2015 (http://www.bbc.co.uk/news/world-us-canada-33646704)
Pew Research Center, “Public Continues to Oppose Banning Handgun Sales,” 14 May 2008 (http://www.people-press.org/files/legacy-pdf/419.pdf)
Richard Posner, “In Defense of Looseness: The Supreme Court and Gun Control,” New Republic, 27 August 2008
Jack Rakove, “Thoughts on Heller From a ‘Real Historian’,” Balkanization, 27 June 2008 (http://balkin.blogspot.co.uk/search?q=rakove+heller)
Richard Re, “Is Heller Being Narrowed From Below?” PrawfsBlawg, 14 June 2015 (http://prawfsblawg.blogs.com/prawfsblawg/2015/06/is-heller-being-narrowed-from-below.html)
William Rehnquist, “Constitutional Law and Public Opinion,” Suffolk University Law Review 20 (Winter 1986): 751-769
“Remarks by the President on Common-Sense Gun Safety Reform” (available at https://www.whitehouse.gov/the-press-office/2016/01/05/remarks-president-common-sense-gun-safety-reform)
Republican National Platform 2012 (http://www.presidency.ucsb.edu/papers_pdf/101961.pdf)
Glenn Harlan Reynolds, “A Critical Guide to the Second Amendment,” Tennessee Law Review 62 (Spring 1995): 461-512
Dan Roberts, David Smith, and Ben Jacobs, “Tearful Obama Tightens Gun Control and Tells Inactive Congress: ‘We Can’t Wait’,” The Guardian, 5 January 2016
Allen Rostron, “Justice Breyer’s Triumph in the Third Battle Over the Second Amendment,” George Washington Law Review 80 (April 2012): 703-763
Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002)
Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849-865
Robert Shalhope, “The Ideological Origins of the Second Amendment,” Journal of American History 69 (December 1982): 599-614
Reva Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Harvard Law Review 122 (November 2008): 191-245
Reva Siegel “Heller and Originalism’s Dead Hand – In Theory and Practice,” UCLA Law Review 56 (June 2009): 1399-1424
Robert Spitzer, “Lost and Found: Researching the Second Amendment,” Chicago-Kent Law Review 76 (2000): 349-401
Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (New York: Doubleday, 2012)
Nina Totenberg, “Supreme Court Strikes Down DC Handgun Ban,” NPR, 26 June 2008 (http://www.npr.org/templates/story/story.php?storyId=91934910)
Mark Tushnet, Out of Range: Why The Constitution Can’t End the Battle Over Guns (Oxford: Oxford University Press, 2007)
Mark Tushnet, “More on Heller,” Balkanization, 27 June 2008 (http://balkin.blogspot.co.uk/2008/06/more-on-heller.html)
Mark Tushnet, “Heller and the New Originalism,” Ohio State Law Journal 69 (2008): 609-624
Mark Tushnet, In The Balance: Law and Politics on the Roberts Court (New York: W.W. Norton & Co., 2013)
“US Republicans Attack Obama Gun Control Moves,” BBC, 6 January 2016 (http://www.bbc.co.uk/news/world-us-canada-35239504)
H. Richard Uviller and William Merkel, The Militia and the Right to Bear Arms Or, How the Second Amendment Fell Silent (London: Duke University Press, 2002)
Rachel Van Dongen, “Republicans Take to Social Media to Bash Obama’s Gun Control Announcement,” Washington Post, 5 January 2016 (https://www.washingtonpost.com/news/powerpost/wp/2016/01/05/republicans-take-to-social-media-to-bash-obamas-gun-control-announcement)
“Washington Post Poll: Most Americans Say Amendment Covers Individuals and Militias,” Washington Post, 16 March 2008 (http://www.washingtonpost.com/wp-dyn/content/graphic/2008/03/16/GR2008031600072.html)
Debra Cassens Weiss, “Second Amendment Ruling is Justice Scalia’s Originalism ‘Legacy’,” ABA Journal, 27 June 2008 (http://www.abajournal.com/mobile/article/second_amendment_ruling_is_justice_scalias_originalism_legacy)
Keith Whittington, “The New Originalism,” Georgetown Journal of Law and Public Policy 2 (Summer 2004): 599-613
J. Harvie Wilkinson, “Of Guns, Abortion, and the Unravelling Rule of Law,” Virginia Law Review 95 (April 2009): 253-323
Adam Winkler, “Heller’s Catch-22,” UCLA Law Review 56 (June 2009): 1551-1577
Adam Winkler, Gun Fight: The Battle Over the Right to Bear Arms in America (New York: W.W. Norton & Co., 2011)
Adam Winkler, “Would a Liberal Supreme Court Overturn Heller?” SCOTUSBlog, 6 September 2016 (http://www.scotusblog.com/2016/09/the-court-after-scalia-would-a-liberal-supreme-court-overturn-heller)
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Notes
i See, for example, Michele Gorman, “Death of Justice Scalia Puts Supreme Court’s Stance on Guns into Question,” Newsweek, 15 February 2016 (http://www.newsweek.com/justice-scalia-death-supreme-court-gun-stance-question-426564, accessed 16 February 2016); Lois Beckett, “Antonin Scalia’s Death Calls Supreme Court Gun Rights Stance into Question,” The Guardian, 13 February 2016 (http://www.theguardian.com/law/2016/feb/13/anotnin-scalia-justice-dead-supreme-court-gun-rights, accessed 1 March 2016).
ii See Christopher Ingraham, “Shooting in Oregon: So Far in 2015 We’ve Had 274 Days and 294 Mass Shootings,” Washington Post, 1 October 2015 (https://www.washingtonpost.com/news/wonk/wp/2015/10/01/2015-274-days-294-mass-shootings-hundreds-dead/, accessed 3 October 2015); “1052 Mass Shootings in 1,066 Days: This is What America's Gun Crisis Looks Like,” The Guardian, 3 December 2015 (http://www.theguardian.com/us-news/ng-interactive/2015/oct/02/mass-shootings-america-gun-violence, accessed 4 December 2015). The numbers are contested, however. See Mark Follman, “How Many Mass Shootings Are There, Really?” New York Times, 3 December 2015.
iii “Remarks by the President on Common-Sense Gun Safety Reform” (available at https://www.whitehouse.gov/the-press-office/2016/01/05/remarks-president-common-sense-gun-safety-reform, accessed 8 January 2016). “Obama Admits US Gun Laws Are His ‘Biggest Frustration’,” BBC, 24 July 2015 (http://www.bbc.co.uk/news/world-us-canada-33646704, accessed 10 August 2015).
iv Dan Roberts, David Smith, and Ben Jacobs, “Tearful Obama Tightens Gun Control and Tells Inactive Congress: ‘We Can’t Wait’,” The Guardian, 5 January 2016; Jennifer Hansler and Paola Chavez, “2016 Candidates React to Obama’s Gun Control Measures,” ABC News, 5 January 2016 (http://abcnews.go.com/Politics/2016-candidates-react-obamas-gun-control-measures/story?id=36097217, accessed 6 January 2016).
v Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indiana: Bobbs-Merrill Company, Inc., 1962).
vi Conservatives were particularly concerned that the Justices had, or would, decide cases based on their personal political and policy preferences rather than strictly on the dictates of the law. For a good introduction to the role of personal policy preferences see Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002).
vii It has been argued that the concept of originalism dates back long before the end of the 20th Century: “[T]he first statute ever enacted within an English-speaking jurisdiction on the subject of statutory construction – dating from the 15th Century – forbade any approach other than originalism … [Originalism is] an example of a ‘retronym,’ a word invented to account for an age-old thing when some new-fangled thing has emerged. Nobody referred to landlines until wireless technology came around; before that all telephone lines were landlines … So it was with originalism: That was the only method that existed until the mid-20th century.” Bryan Garner, “A Tribute to Nino,” ABA Journal (April 2016): 26-8. It is clear, however, that in the 1970s conservatives began to more clearly articulate and expand upon earlier jurisprudential methods to create a distinctive methodology referred to as “original intent.”
The literature on originalism is extensive. For an introduction, see Raoul Berger, Government By Judiciary: The Transformation of the Fourteenth Amendment (London: Harvard University Press, 1977); Robert Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (Fall 1971): 1-35; Edwin Meese III, “Toward a Jurisprudence of Original Intent,” Harvard Journal of Law and Public Policy (Winter 1988): 5-12; Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849-865; and Fordham University Law Review 65 (March 1997): 1247-1818 (Symposium: Fidelity in Constitutional Theory). For an overview of the debates, see Daniel Farber, “The Originalism Debate: A Guide For the Perplexed,” Ohio State Law Journal 49 (1989): 1085-1106.
viii For a good discussion of how conservatives developed and used such an argument, see Reva Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Harvard Law Review 122 (November 2008): 191-245, especially 215-226.
ix See, for example, Randy Barnett, “An Originalism For Nonoriginalists,” Loyola Law Review 45 (Winter 1999): 611-645; Richard Kay, “Original Intention and Public Meaning in Constitutional Interpretation,” Northwestern University Law Review 103 (Spring 2009): 703-726, at 703-714; Keith Whittington, “The New Originalism,” Georgetown Journal of Law and Public Policy 2 (Summer 2004): 599-613; and Fordham University Law Review 82 (November 2013): 371-826 (Symposium: The New Originalism in Constitutional Law).
x The definition of “triumph” is the act or condition of being victorious; “victory” is defined as a success attained in a contest or struggle over an opponent, obstacle, or problem, or final and complete superiority in a war. I therefore take assertions of originalism’s “triumph” in Heller to mean its successful challenge to other methods of interpretation and, in some cases, its ultimate defeat of those methods. This definition underpins the following discussion.
On the “triumph of originalism,” see Randy Barnett, “News Flash: The Constitution Means What It Says,” Wall Street Journal, 27 June 2008; National Rifle Association, “Heller: The Supreme Decision,” 27 June 2008 (https://www.nraila.org/articles/20080627/heller, accessed 1 June 2015); Alan Gura, “Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvey Wilkinson,” UCLA Law Review 56 (June 2009): 1127-1169, at 1129. For those noting the importance of originalism without hailing the decision, see Debra Cassens Weiss, “Second Amendment Ruling is Justice Scalia’s Originalism ‘Legacy’,” ABA Journal, 27 June 2008 (http://www.abajournal.com/mobile/article/second_amendment_ruling_is_justice_scalias_originalism_legacy, accessed 1 June 2015); J. Harvie Wilkinson, “Of Guns, Abortion, and the Unravelling Rule of Law,” Virginia Law Review 95 (April 2009): 253-323, at 256; Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (New York: Doubleday, 2012), 111-112; Mark Tushnet, In The Balance: Law and Politics on the Roberts Court (New York: W.W. Norton & Co., 2013), 149, 185.
However, see Reva Siegel, “Dead or Alive.” Siegel argues that far from embodying the history of the eighteenth century, the majority’s use of originalism in Heller “takes guidance from the lived experience and passionate convictions of Americans in times since the founding” (192). Specifically, she argues, the arguments made by the majority were far more deeply influenced by the political debates about gun control that developed after Brown v. Board of Education than by the history of the eighteenth century. In essence, Siegel argues that, consciously or unconsciously, the Heller majority was influenced in its reading of history by recent or contemporary politics, a claim most historians would recognise as familiar in historical study. Without denying the validity of Siegel’s convincing argument, my interest here is not specifically in the history put forward in Heller’s various opinions, but in the debate sparked by that use of history and the consequences of that debate for originalism as a methodology.
xi District of Columbia v. Heller 554 US 570, 576 (2008).
xii District of Columbia v. Heller 554 US 570, 592 (2008).
xiii District of Columbia v. Heller 554 US 570, 599 (2008). On collective rights, see the argument at n.xxixand accompanying text.
xiv District of Columbia v. Heller 554 US 570, 605 (2008).
xv District of Columbia v. Heller 554 US 570, 636-7 (2008) (Justice Stevens, dissenting).
xvi District of Columbia v. Heller 554 US 570, 662 (2008) (Justice Stevens, dissenting).
xvii District of Columbia v. Heller 554 US 570, 652 (2008) (Justice Stevens, dissenting).
xviii As Mark Tushnet observed: “Heller was a test for conservative originalists’ claim that modern originalism’s exclusive focus on historical materials would keep judges from advancing their policy views while pretending to interpret the Constitution. Originalism didn’t quite fail the test, but it got a grade of C+ or so – pretty much the grade you’d give every other method of constitutional interpretation.” Mark Tushnet, In The Balance: Law and Politics on the Roberts Court (New York: W.W. Norton & Co., 2013), 168.
xix Most studies address more than one of these subjects. See, for example, Robert Churchill, “Gun Regulation, the Police Power and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment,” Law and History Review 25 (Spring 2007): 139-185; Saul Cornell, “Heller, New Originalism, and Law Office History: ‘Meet the New Boss, Same as the Old Boss’,” UCLA Law Review 56 (June 2009): 1095-1125; Saul Cornell, “Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” Ohio State Law Journal 69 (2008): 625-640; Dennis Henigan, “The Heller Paradox,” UCLA Law Review 59 (June 2009): 1171-1210; David Konig, “Arms and the Man: What Did the Right to ‘Keep’ Arms Mean in the Early Republic?” Law and History Review 25 (Spring 2007): 177-185; Joyce Lee Malcolm, “The Supreme Court and the Uses of History: District of Columbia v. Heller,” UCLA Law Review 56 (June 2009): 1377-1398; Robert Shalhope, “The Ideological Origins of the Second Amendment,” Journal of American History 69 (December 1982): 599-614. For a direct comparison of the sources used by Scalia and Stevens see Wilkinson, “Of Guns,” 267-272.
xx Cornell, “New Originalism,” 1098. See, for example, Carl T. Bogus, “The History and Politics of Second Amendment Scholarship: A Primer,” Chicago-Kent Law Review 76 (2000): 3-25; Cornell, “New Originalism,” 1098; Henigan, “The Heller Paradox”; Gura, “Originalist Judicial Engagement,” 1129; Don Kates, “A Modern Historiography of the Second Amendment,” UCLA Law Review 56 (June 2009): 1211-1232, at 1226-7; Sandford Levinson, “Some Preliminary Reflections on Heller,” Balkanization, 26 June 2008 (http://balkin.blogspot.co.uk/2008/06/some-preliminary-reflections-on-heller.html, accessed 30 June 2008); Jack Rakove, “Thoughts on Heller From a ‘Real Historian’,” Balkanization, 27 June 2008 (http://balkin.blogspot.co.uk/search?q=rakove+heller, accessed 30 June 2008); Mark Tushnet, “More on Heller,” Balkanization, 27 June 2008 (http://balkin.blogspot.co.uk/2008/06/more-on-heller.html, accessed 30 June 2008); Mark Tushnet, “Heller and the New Originalism,” Ohio State Law Journal 69 (2008): 609-624, at 610.
xxi Richard Posner, “In Defense of Looseness: The Supreme Court and Gun Control,” New Republic, 27 August 2008.
xxii Nelson Lund, “Civil Rights: The Heller Case – Minutes From a Convention of the Federalist Society,” New York University Journal of Law and Liberty 4 (2009): 293-329. See also, Adam Winkler, Gun Fight: The Battle Over the Right to Bear Arms in America (New York: W.W. Norton & Co., 2011), 281-288.
xxiii Wilkinson, “Of Guns,” 254.
xxiv Wilkinson, “Of Guns,” 257.
xxv Justice Scalia quoted in Marcia Coyle, The Roberts Court: The Struggle for the Constitution (New York: Simon & Schuster, 2013), 163.
xxvi Coyle, The Roberts Court, 192.
xxvii Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1980): 637-659.
xxviii Glenn Harlan Reynolds, “A Critical Guide to the Second Amendment,” Tennessee Law Review 62 (Spring 1995): 461-512, at 463; Nelson Lund, “Book Review: Outsider Voices on Guns and the Constitution,” Constitutional Commentary 17 (Winter 2000): 701-720, at 708. A small sample of the enormous literature espousing the individual rights position includes Stephen Halbrook, “What the Framers Intended: A Linguistic Analysis of the Right to ‘Bear Arms’,” Law and Contemporary Problems 49 (Winter 1986): 161-162; Don Kates Jr., “The Second Amendment and the Ideology of Self-Protection,” Constitutional Commentary 9 (Winter 1992): 87-104; Malcolm, “The Supreme Court and the Uses of History.” For a good analysis of the reasons for the rise of the individualist view from someone critical of it, see Robert Spitzer, “Lost and Found: Researching the Second Amendment,” Chicago-Kent Law Review 76 (2000): 349-401.
xxix See, for example, Carl Bogus, “The Hidden History of the Second Amendment,” UC Davis Law Review (Winter 1998): 309-408; Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford: Oxford University Press, 2008); H. Richard Uviller and William Merkel, The Militia and the Right to Bear Arms Or, How the Second Amendment Fell Silent (London: Duke University Press, 2002); and Chicago-Kent Law Review 76 (2000): 3-600 (Symposium: The Second Amendment: Fresh Looks).
xxx See quote at n.xii.
xxxi Mary Lu Carnevale, “Gun Ruling Lets Both Sides Claim Victory,” Wall Street Journal, 26 June 2008.
xxxii Dan Balz and Keith Richburg, “Historical Decision Renews Old Debate,” Washington Post, 27 June 2008.
xxxiii Patrick Charles, “The Second Amendment in the Twenty-First Century: What Hath Heller Wrought?” William and Mary Bill of Rights Journal 23 (May 2015): 1143-1183, at 1179. For an alternative view see Joseph Blocher, “Gun Rights Talk,” Boston University Law Review 94 (May 2014): 813-833, especially 820-828 (arguing that absolutism is deeply rooted in the American debate about guns).
xxxiv See, for example, the 2012 Republican National Platform (http://www.presidency.ucsb.edu/papers_pdf/101961.pdf, at 13); Charles, “What Hath Heller Wrought?,” 1153-65, 1148.
xxxv District of Columbia v. Heller 554 US 570, 626-627 (2008).
xxxvi Freedom of speech is one example. As Justice Oliver Wendell Holmes wrote in a frequently misquoted 1919 majority opinion: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. US 249 US 47, 52 (1919). Individuals and groups may be restricted to airing their views at certain times of the day, in certain designated spaces, and certain modes of expression might be prevented (so-called “time, place, manner restrictions”) in order to protect public convenience, order, and safety.
xxxvii In 2013, Mark Tushnet confidently claimed that the list of exceptions was included to secure the vote of Justice Anthony Kennedy. Although plausible, Tushnet provides no definitive evidence for this. Tushnet, In The Balance, 182.
xxxviii Winkler, “Heller’s Catch-22,” 1565. See generally Reva Siegel “Heller and Originalism’s Dead Hand – In Theory and Practice,” UCLA Law Review 56 (June 2009): 1399-1424.
xxxix Henigan, “The Heller Paradox,” 1196; Wilkinson, “Of Guns,” 273, 281.
xl The literature on the Court and public opinion is voluminous. As a starting point see Christopher Casillas, Peter Enns, and Patrick Wohlfarth, “How Public Opinion Constrains the US Supreme Court,” American Journal of Political Science 55 (January 2011): 74-88; Lee Epstein and Andrew Martin, “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why),” University of Pennsylvania Journal of Constitutional Law 13 (December 2010): 263-281; Kevin McGuire and James Stimson, “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences,” The Journal of Politics 66 (November 2004): 1018-1035; William Rehnquist, “Constitutional Law and Public Opinion,” Suffolk University Law Review 20 (Winter 1986): 751-769.
xli Jeffrey Jones, “Americans in Agreement With Supreme Court on Gun Rights,” Gallup, 26 June 2008 (http://www.gallup.com/poll/108394/Americans-Agreement-Supreme-Court-Gun-Rights.aspx, accessed 3 June 2015); “Washington Post Poll: Most Americans Say Amendment Covers Individuals and Militias,” Washington Post, 16 March 2008 (http://www.washingtonpost.com/wp-dyn/content/graphic/2008/03/16/GR2008031600072.html, accessed 3 June 2015); Pew Research Center, “Public Continues to Oppose Banning Handgun Sales,” 14 May 2008 (http://www.people-press.org/files/legacy-pdf/419.pdf, accessed 3 June 2015); Siegel, “Dead or Alive,” 241-2.
xlii Law Center to Prevent Gun Violence, “Post-Heller Litigation Summary: 31 March 2015,” 1 (http://smartgunlaws.org/post-heller-litigation-summary/, accessed 3 June 2015).
xliii See Adam Winkler, “Heller’s Catch-22,” UCLA Law Review 56 (June 2009): 1551-1577, at 1565-6; Allen Rostron, “Justice Breyer’s Triumph in the Third Battle Over the Second Amendment,” George Washington Law Review 80 (April 2012): 703-763, at 1725-56; Law Center to Prevent Gun Violence, “Post-Heller Litigation Summary: 31 March 2015”.
xliv See, for example, Moore v. Madigan 702 F.3d 533 (7th Cir. 2012), Peruta v. San Diego County 742 F.3d 1144 (9th Cir. 2014), and Tyler v. Hillsdale County Sheriff’s Department 775 F.3d 308 (6th Cir. 2014).
xlv Winkler, “Heller’s Catch-22,” 1564; Henigan, “The Heller Paradox,” 1199.
xlvi NRA v. Bureau of Alcohol, Tobacco, and Firearms, docket no. 13-137, Petition for Writ of Certiorari, 1 (http://sblog.s3.amazonaws.com/wp-content/uploads/2013/08/NRA-petition-13-137.pdf, accessed 1 May 2015). In their brief to the Court the following year in Jackson v. City and County of San Francisco, the NRA again accused lower courts of “continued resistance to Heller and McDonald.” Jackson v. City and County of San Francisco, docket no.14-704, Petition for Writ of Certiorari, 18 (http://sblog.s3.amazonaws.com/wp-content/uploads/2015/04/2014-12-12-NRA-Jackson-Cert-Petition-FINAL-1.pdf, accessed 1 May 2015).
xlvii Linda Greenhouse, “‘Weighing Needs and Burdens:’ Justice Breyer’s Heller Dissent,” Syracuse Law Review 59 (2008): 299-308, at 299.
xlviii District of Columbia v. Heller 554 US 570, 689 (2008) (Justice Breyer, dissenting).
xlix District of Columbia v. Heller 554 US 570, 703 (2008) (Justice Breyer, dissenting).
l Friedman v. City of Highland Park, docket no. 15-133, Brief of Respondent in Opposition to Petition for Writ of Certiorari, 5-7 (http://www.scotusblog.com/wp-content/uploads/2015/10/150807-for-filing.pdf, accessed 4 January 2016).
li Ordinance 68-13, An Ordinance Amending Chapter 134 of “The Highland Park Code of 1968,” As Amended, Regarding Assault Weapons (https://www.ispfsb.com/Public/Firearms/Ordinances%5Chighlandpark.pdf, accessed 4 January 2016).
lii Charles, “What Hath Heller Wrought?,” 1175, 1152.
liii Eric Bradner, “GOP 2016 Candidates Bash Obama’s Gun Control Push,” CNN, 6 January 2016 (http://edition.cnn.com/2016/01/05/politics/obama-gun-control-republican-reaction/, accessed 6 January 2016); “US Republicans Attack Obama Gun Control Moves,” BBC, 6 January 2016 (http://www.bbc.co.uk/news/world-us-canada-35239504, accessed 6 January 2016); Rachel Van Dongen, “Republicans Take to Social Media to Bash Obama’s Gun Control Announcement,” Washington Post, 5 January 2016 (https://www.washingtonpost.com/news/powerpost/wp/2016/01/05/republicans-take-to-social-media-to-bash-obamas-gun-control-announcement/, accessed 6 January 2016).
liv See Law Center to Prevent Gun Violence (http://smartgunlaws.org/category/gun-laws-policies/new-gun-legislation/, accessed 3 June 2015).
lv This is not to say that Breyer would necessarily support those laws, only that under the reasoning he offered in Heller the states’ reasoning would demand significant deference.
lvi District of Columbia v. Heller 554 US 570, 680 n.39 (Justice Stevens, dissenting).
lvii Levinson, “The Embarrassing Second Amendment,” 654.
lviii See, for example, Lyle Dennison, “So, What’s Next on Guns?”, SCOTUSBlog, 26 June 2008 (http://www.scotusblog.com/2008/06/commentary-so-whats-next-on-guns/, accessed 17 May 2015); Nina Totenberg, “Supreme Court Strikes Down DC Handgun Ban,” NPR, 26 June 2008 (http://www.npr.org/templates/story/story.php?storyId=91934910, accessed 1 May 2015); Balz and Richburg, “Historical Decision Renews Old Debate”; SCOTUSBlog online Heller symposium, June 2008 (http://www.scotusblog.com/case-files/cases/dc-v-heller/).
lix For example, in January 2015 the Court granted certiorari in four same-sex marriage cases having turned down similar appeals in other cases less than three months earlier. In the interim, the Sixth Circuit had ruled, in November 2014, that a ban on same-sex marriage did not violate the Constitution, creating a split with other Circuit Courts which had held such bans did violate the Constitution. It seems likely that the Court accepted the later cases, which became Obergefell v. Hodges, as a result of the split that emerged as a result of the Sixth Circuit’s ruling.
lx See cases discussed at n.xlii-xliv.
lxi Richard Re, “Is Heller Being Narrowed From Below?” PrawfsBlawg, 14 June 2015 (http://prawfsblawg.blogs.com/prawfsblawg/2015/06/is-heller-being-narrowed-from-below.html, accessed 23 June 2015).
lxii The classic expression of this can be found in New Ice Co. v. Liebmann 282 US 262, 311 (1932) (Justice Brandeis, dissenting): “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Brandeis, however, went on to note that the Court had the right to limit such experimentation under the Due Process Clause of the Fourteenth Amendment.
lxiii Jackson v. City and County of San Francisco 576 US _ (2015), docket no. 14-704 (Justice Thomas dissenting from denial of certiorari), 2, 3.
lxiv There are differences between the laws at issue in Heller and those in Jackson. Most notably, DC barred the ownership of handguns while San Francisco did not and DC required guns to be disassembled or bound by a trigger lock whereas San Francisco only required that the guns be kept in a locked container if not being worn.
lxv Friedman v. City of Highland Park, Illinois 577 US _ (2015), docket no. 15-133 (Justice Thomas dissenting from denial of certiorari), 1, 4, 6.
lxvi See n.xxvi and related text.
lxvii Mark Tushnet, Out of Range: Why The Constitution Can’t End the Battle Over Guns (Oxford: Oxford University Press, 2007).
lxviii Winkler, Gun Fight, 294.
lxix Winkler, Gun Fight, 295.
lxx For early speculation from different political perspectives, see Alan Gura, “The Next “Conservative” Justice May Not Save the Second Amendment,” SCOTUSBlog, 6 September 2016 (http://www.scotusblog.com/2016/09/the-court-after-scalia-the-next-conservative-justice-may-not-save-the-second-amendment/, accessed 12 September 2016) and Adam Winkler, “Would a Liberal Supreme Court Overturn Heller?” SCOTUSBlog, 6 September 2016 (http://www.scotusblog.com/2016/09/the-court-after-scalia-would-a-liberal-supreme-court-overturn-heller/, accessed 12 September 2016).
lxxi Caetano v. Massachusetts 577 US _ (2016), docket no. 14-10078.
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