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Everything’s at Stake: Preserving Authority to Prevent Gun Violence in the Second Amendment’s Third Chapter

By Jonathan E. Lowy, Christa Nicols, & Kelly Sampson. Full Text.

In New York State Rifle and Pistol Association (“NYSRPA”) v. Bruen, the U.S. Supreme Court will decide to what extent New York (or any state) can restrict carrying concealed handguns in public. “Gun rights” advocates seek to establish a sweeping interpretation of the Second Amendment, unprecedented in American law, that could entitle virtually anyone to carry loaded guns virtually anywhere, to fire when they see fit, and deprive states of the authority to stop them before it is too late. The Court could also adopt a standard of review that could empower judges to strike down virtually any gun law. This would put the United States into uncharted waters, because Americans have always decided gun policy through democratic processes, not judges.

But the gun lobby should not start shooting off their celebratory gunfire just yet. Heller, and the historical traditions on which it relies, support upholding New York’s law, and other longstanding gun laws. And Heller, intentionally or not, tracked what many Americans believe—that they have some right to firearms, but restrictions are generally allowed. Indeed, more sweeping conceptions of the Second Amendment are at odds with most Americans’ views. Limiting Heller to its narrow holding might therefore hit the political sweet spot.

This Article argues that preserving Americans’ authority to enact strong gun laws is consistent with Heller and longstanding tradition. And Heller’s historical and doctrinal shortcomings make it far too shaky a foundation to expand upon.