Second Shot At The Second Amendment: Could Heller Be Undone By An Errant Qualifier?

The legal strategy to hollow out the Second Amendment no longer needs a repeal of Heller. It just needs a clever enough reading of one stray phrase in the opinion. Gun control advocates have latched onto Justice Scalia’s reference to “law-abiding, responsible citizens” and turned it into a condition. Their argument goes something like this: if the right only attaches to people the state considers responsible, then the state gets to decide who is responsible. That is not a second shot at Heller. That is a way to strangle it in its sleep.

Heller did say the right is not unlimited. There are longstanding restrictions on felons and the mentally ill. But that list was a description of settled history, not an open invitation to expand it. The difference matters. A right that depends on a government.

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