What Has Heller Wrought In 18 Years?
· Reason
Brown v. Board of Education was decided in 1954. How much of an impact did Brown have on racial segregation in the United States over the next two decades?
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Mapp v. Ohio was decided in 1961, Miranda v. Arizona was decided in 1966, and Katz v. United States was decided in 1967. How much did criminal procedure law change over the ensuing two decades?
Roe v. Wade was decided in 1973. Nineteen years later, the Supreme Court reaffirmed that precedent in Casey.
Romer v. Evans was decided in 1996. Nineteen years later the Supreme Court created a constitutional right to same-sex marriage.
And so on.
Certain landmark Supreme Court precedents have an immediate and significant impact on the state of constitutional law. Other precedents change very little. In my view, as we celebrate Heller's eighteenth birthday, not much has changed for gun owners living in blue states. To be sure, I think Heller was correct. And there have been some wins as states have revised their gun laws--often kicking and screaming. But the impact of Heller pales in comparison with the two decade run after other landmark cases. Even where there is "shall issue" conceal carry, virtually every public place is off limits, making it difficult to actually carry. States have imposed burdensome registration and licensing schemes, making simply keeping a firearm a hassle. And to date, the Court has seemed more interested in letting pot users own guns than deciding which arms and accessories are protected by the Second Amendment.
My new column in Civitas Outlook asks, "What the Heller?"
Eighteen years ago, on June 26, 2008, the Supreme Court decided District of Columbia v. Heller. This landmark decision declared that the Second Amendment protected an individual right to keep and bear arms that was not connected to militia service. As a result, the District of Columbia's handgun ban was unconstitutional. Eighteen years later, the Second Amendment has become a regular feature of the Supreme Court's jurisprudence. But as the right to keep and bear arms becomes old enough to vote, it is worth taking stock of how much has been accomplished on the ground. Regrettably, in nearly two decades, very little about the practical right to keep and bear arms has changed.
The biggest decisions, Heller and McDonald v. City of Chicago (2010), invalidated handgun bans that were virtually non-existent across the country. New York Rifle & Pistol Association v. Bruen (2022) halted the "may issue" conceal carry regimes, which were only in effect in a minority of states. Most recently, Wolford v. Lopez (2026) ruled that Hawaii could not presumptively ban firearms from all private property, but those businesses will gladly post signs to exclude gun owners. With each incremental victory, anti-gun governments have resisted the Second Amendment and marginalized gun owners. Unless the Supreme Court starts to vigorously enforce all facets of the Second Amendment, Heller will have amounted to little.
Moreover, perhaps the greatest unintended consequence of Heller and its progeny has been to provide progressives with a target to attack originalism:
Perhaps the biggest fallout from Heller is that the Second Amendment has become a cudgel the left can use to attack originalism. While most originalist cases promote judicial restraint, for example, Dobbs let the states decide the abortion issue, and Heller delegated to the courts the power to review gun control laws. I doubt anyone who was unpersuaded by Heller has become persuaded by Bruen and its progeny. The battle lines from 2008 haven't moved an inch. All that has changed is the membership of the Court: Justices Souter, Stevens, Scalia, Kennedy, Ginsburg, and Breyer have been replaced by Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson. What will the Second Amendment look like in another eighteen years? I suspect not much will change unless the Court begins vigorously enforcing cases that actually enable gun owners to exercise their right to keep and bear arms.
Heller was an originalist decision, except when it started making up exceptions out of whole cloth. Bruen was an attempt at originalism that almost all originalist scholars dispute. Rahimi walked back Bruen barely a year later, letting lower court judges update an Amendment that is not "trapped in amber." And as I'll explain in a future writing, I am almost completely lost after Wolford. The Court has lost the thread on the Second Amendment. Justice Barrett's scholarly exposition (and I do not mean that in a flattering way) leaves a lot to be desired. Justice Jackson is actually making some sense, even if I do not agree with her preference for an interest-balancing test.
In candor, I wrote this column after Hemani and Wolford were decided, but before the Court finally granted the AR-15 petition. The Cook County case might actually provide a material improvement to the rights of gun owners nationwide.
Have things improved since 2008? It's complicated. On the one hand, the Supreme Court has rightly restored the Constitution's original meaning. This is a victory for the rule of law. On the ground, however, things have not changed too much. Gun owners in red states had strong gun protections before Heller and retain those rights thanks to the political process. (Virginia is a gross outlier, as the purple state recently enacted draconian bans on firearms.) By contrast, gun owners in blue states may now be able to obtain a conceal carry permit, but there are very few places in urban environments where they can legally carry. And they still can't possess AR-15s. Indeed, some blue states have been galvanized by Heller to make gun ownership even more oppressive. Fortunately, on the final day of the term, the Supreme Court agreed to hear a pair of cases challenging bans on AR-15s in Illinois and Connecticut.
I'd like to think the Court took this case after so many relists to reverse the Seventh Circuit, but one could never know.
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