Permissible Gun Regulations After Heller: Speculations About Method and Outcome

Abstract

This Essay speculates about the substance and timing of likely decisions by lower courts and the Supreme Court in dealing with issues left open by District of Columbia v. Heller. It suggests that lower courts will not address those issues by examining original understandings regarding permissible gun regulations, but will instead apply to such regulations something like an intermediate standard of review or rational basis with bite, and will rarely find unconstitutional an existing regulation of guns, short of what in practice amounts to a complete ban. It speculates as well that the Supreme Court will allow most Second Amendment issues to percolate in the lower courts, and that the Court that takes up another Second Amendment issue may well have a different composition, one less sympathetic than the present Court to gun rights. It concludes that Heller’s fate may be similar to the fate of the Rehnquist Court’s so-called Federalism Revolution—an important decision with relatively little enduring impact.