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Four exceptions in search of a theory: District of Columbia v. Heller and judicial Ipse Dixit

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This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller. Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: (i) laws disarming felons, (2) laws disarming the mentally ill, (3) laws prohibiting the possession of firearms in sensitiveplaces, and (4) laws regulating the commercial sale of firearms. The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ. The Court's approach seems to require specific historical justifications for the exceptions. Eighteenth-century analogues, however, are either missing or incomplete for many of the exceptions. The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny. Many of the exceptions fail strict scrutiny, as analogies to the First Amendment context readily demonstrate. Accordingly, some lesser standard of review of firearms regulation must apply, although it is quite difficult to know what that standard is. The Court's failure to articulate a clear standard is a significant failure, leaving lower courts and litigants utterly in the dark as to the basic legal principles applicable to firearms regulation.

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