Past Issues
Submissions
Subscriptions
Membership
Symposia
Copyright
About
Member Access



UCLA Law Review

1242 Law Building
Box 951476
Los Angeles, CA 90095-1476

Tel: (310) 825-4929
Fax: (310) 825-6365

General Inquiries:
Ann M. Roller
Office Coordinator


RSS Feeds:



ARTICLE

The Heller Paradox
Dennis A. Henigan* 
56 UCLA L. Rev. 1171

[PDF]:
[TEXT]: Westlaw | LexisNexis | HeinOnline |

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.


* 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).

Leave a Reply

Issue 56:5
Gun Control After Heller: Threats and Sideshows From a Social Welfare Perspective
Philip J. Cook
Jens Ludwig
Adam M. Samaha

Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss”
Saul Cornell

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson
Alan Gura

The Heller Paradox
Dennis A. Henigan

A Modern Historiography of the Second Amendment
Don B. Kates

The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data
Gary Kleck
Shun-Yung Kevin Wang

Why The Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America
David Thomas Konig

The Second Amendment, Heller, and Originalist Jurisprudence
Nelson Lund

The Supreme Court and the Uses of History: District of Columbia v. Heller
Joyce Lee Malcolm

The Right to Know: An Approach to Gun Licenses and Public Access to Government Records
Kelsey M. Swanson

Heller & Originalism’s Dead Hand — In Theory and Practice
Reva B. Siegel

Permissible Gun Regulations After Heller: Speculations About Method and Outcomes
Mark Tushnet

Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda
Eugene Volokh

Heller’s Catch-22
Adam Winkler



© 2010 UCLA Law Review