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Winkler on Heller

By Lawrence Solum

Adam Winkler (University of California, Los Angeles - School of Law) has posted Heller's Catch 22  (forthcoming UCLA Law Review, Vol. 56, June 2009) on SSRN.  Here is the abstract:

oseph Heller's satire Catch-22 has become a classic for its revealing look at the illogic, inconsistency, and circular reasoning common in modern bureaucratic life. This article uses Heller's novel to frame a critical analysis of the recent landmark Second Amendment decision of the U.S. Supreme Court that carries the Catch-22 author's surname, District of Columbia v. Heller. The majority opinion in Heller suffers from many of the missteps and contradictions Heller's novel identified. Although hailed as a "triumph of originalism," the opinion paradoxically relies on a thoroughly modern understanding of gun rights. Justice Scalia has argued that originalism is necessary to preserve the legitimacy of the Court, but Heller is more likely to be accepted as legitimate precisely because Scalia's opinion departed from the original meaning of the Second Amendment. Moreover, this celebrated landmark decision has had almost no effect on the constitutionality of gun control. To date, the federal courts have yet to invalidate a single gun control law for violating the Second Amendment right to bear arms, despite scores of cases. While some laws are sure to be invalidated in time, the new Second Amendment's bark is far worse than its right. The greatest irony is that Heller's logical flaws and inconsistencies improve the decision, making it more likely to endure and helping to cement a reasonable, not radical, right to bear arms.

Full post as published by Legal Theory Blog on March 16, 2009 (boomark / email).