The Future of the Second Amendment

Abstract

This Essay is being written prior to the Supreme Court’s consideration of District of Columbia v. Heller, and is being published prior to the Court’s expected decision. Although at the time I write this Essay the Court’s decision cannot be known, the Court will decide whether the Second Amendment guarantees a right to keep and bear arms only in connection with membership in a state-organized militia, or whether it guarantees everyone that right. I believe that the Court’s seeming resolution of this constitutional question will not end our constitutional disagreements over the Second Amendment, much less, of course, our disagreements about good gun policy. Most of this Essay is devoted to defending that belief by speculating about the likely course of public discussion after the Court’s decision in Heller. The conclusion sketches an explanation for what I expect will be our continuing disagreement about the Second Amendment.