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September 16, 2008

Is Heller like Griswold or like Roe or like ...?

As I have been blogging since the Heller decision came down, it is going to take a long time and lots of litigation to unpack just what this Supreme Court decision means for the scope and application of individual Second Amendment rights.  Helpfully, some smart folks have some new articles on SSRN helping us with any Heller headaches by suggesting that Heller is really like some earlier landmark Supreme Court rulings.

Professor Cass Sunstein, for example, suggests Heller is like Griswold v. Connecticut in this new paper, titled "Second Amendment Minimalism: Heller as Griswold."  Judge J. Harvie Wilkinson III, in contrast, suggests Heller is like Roe v. Wade in this new paper, titled "Of Guns, Abortions, and the Unraveling Rule of Law." 

Though I have not given the matter much thought in these terms, my gut reaction would be to compare Heller to First Amendment rulings rather than to substantive due process rulings because there is an express constitutional provision at the heart of the constitutional debate.  But I must note a bias here because, as detailed here, I am part of a legal team making arguments on behalf of Weldon Angelos in his 2255 action in which we assert that Heller indicates that the Supreme Court's jurisprudence surrounding the application of the First Amendment can and should inform questions surrounding the application of the Second Amendment.

September 16, 2008 at 02:27 PM | Permalink


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I can't see Heller becoming a new Roe anytime soon simply because the electorate is not nearly so fractured on the issue. When even the proponents of an idea have to back down because it's a political loser a ruling vindicating the popular opinion just can't generate that much controversy.

Even after decades of argument Roe still hasn't led to the assassination of political figures, something I feared if SCOTUS ruled for D.C.

Posted by: Soronel Haetir | Sep 16, 2008 5:15:02 PM

This kinda seems like JHW's "I realize I'm never going to get on the Supreme Court, so I might as well blow up a few bridges" manifesto.

Posted by: Jay | Sep 16, 2008 8:38:36 PM

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