Title: The Second Amendment in the Twenty-First Century: What Hath Heller Wrought?
Abstract: On May 4,2013, before the National Rifle Association's (NRA) annual convention, Texas Senator Ted Cruz defined the Second Amendment in absolutist terms, stating, [W]hen the Constitution says the right of the people to keep and bear arms shall not be infringed, it means that right shall not be infringed.1 Cruz then promised that he, along with fellow Tea Party Conservatives Kentucky Senator Rand Paul and Utah Senator Mike Lee, would make sure to filibuster any legislation that undermines the Bill of Rights or the Second Amendment right to keep and bear arms.2 In the wake of the landmark Supreme Court decision District of Columbia v. Heller,3 Second Amendment rhetoric like this has become commonplace. Indeed, well before Heller was decided there were some that expressed the Second Amendment in such absolutist terms,4 but it was merely a political subset of file larger debate that was taking place-whether the right to keep and bear arms was individual or collective in nature.5With Heller having answered the question jurisprudentially by placing the right to keep and bear arms alongside other individual rights, the discourse has now shifted towards the Second Amendment's proper place in American society, and there is no shortage of viewpoints.6 The consequential influence Supreme Court opinions can have on the public discourse is nothing new.7 Whenever the Court issues an opinion a sequence of events begins. It generally starts with journalists and the public at large offering a wide array of reactions to the opinion. At the same time, politicians and the heads of political organizations either herald or denounce the opinion dependent upon their respective ideological views, which can be heightened whenever the justices are perceived to have let their alleged liberal or conservative bias dictate the outcome.8 Then enter the legal experts and scholars. They examine the Court's rationale and speak out on both the legitimacy of the Court's reasoning as well as what, if any, effects the opinion will have on other legal matters.9 While all of this is taking place, legal modifications are being made at the federal, state, and municipal levels of government. Laws, ordinances, and regulations seen as being in direct violation of the Court's opinion are suspended, repealed, or amended.10 In those instances where federal, state, or municipal governments do not act accordingly, the law, ordinance, or regulation is subsequently challenged as noncompliant with Court precedent.* 11 It is at this juncture that the full impact of a Supreme Court opinion takes hold.12Of course, this is a very generalized rationalization as to what transpires after the Supreme Court issues an opinion. It does not take into account other variables that can either amplify or diminish its impact, such as the nature of die case before the Court, whether die case involves the scope of governmental power or individual rights, and whether there is a large body of precedent addressing die subject. In the case ofHeller, as this Article sets forth to show, it is fair to say that the impact on American culture and society has been substantial. Although Heller merely acknowledged die right to possess a handgun for armed self-defense in the home, the opinion, and its companion case incorporating the right to the states, McDonald v. City of Chicago,12 have succeeded in shifting the discourse away from the Second Amendment meaning to its scope and place within the spectrum of other constitutional rights.14It is a discourse that this Article will break down into two categories: (1) die right's impact on politics and lawmaking or what may otherwise be described as the political discourse and (2) die right's impact on die opinions of society at large or what may otherwise be described as die public discourse. In many respects the two categories are intertwined. For instance, political rhetoric and debate often influence society's view of what is and is not lawful. …
Publication Year: 2015
Publication Date: 2015-05-01
Language: en
Type: article
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