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The Second Amendment and Public Safety after Heller

For two hundred years, almost all judges in America agreed that the Second Amendment was intended, as the Framers stated in its text, to protect the “well-regulated militia” that the Framers saw as “necessary to a free state” and nothing more.

But ten years ago, all of that changed. On June 26, 2008, the U.S. Supreme Court issued a 5-4 decision in District of Columbia v. Heller, which held for the first time that “law-abiding, responsible Americans” have a right to possess guns in the home – even if they have nothing to do with armies or militias – and they need not possess guns for “the security of a free state,” but are entitled to do so in the home for selfdefense.

Like most rights, the right secured by the Second Amendment is not unlimited.

District of Columbia v. Heller

The Heller decision was a watershed moment in Second Amendment jurisprudence – and a controversial one. Scholars and jurists, including conservatives, lambasted the Court’s decision as the ultimate in judicial activism. Seventh Circuit Judge Richard Posner, a Reagan appointee, referred to the Heller decision as “faux originalism” and a “snow job” that “is questionable in both method and result.” The debate over the real world effect of Heller was no less heated. After all, the scope of the Second Amendment is not an academic issue: it may determine what laws Americans are permitted to enact and enforce to stop the gun violence epidemic that claims over 35,000 lives every year.

Ten years later, debates over the Heller decision continue, but two facts are undisputed. One, Heller is the law of the land. Two, Heller has not ushered in the NRA’s vision of an America where virtually anyone has a right to buy, possess, and carry virtually any guns, anywhere, any time.


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