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. 

I remember June 26, 2008, like it was yesterday. I had just finished my second year of law school and was working as a summer associate. My firm flew the summers to the home office in Los Angeles for some training. (Oh the heady days of big law! The legal market imploded by the end of that summer). I remember waking up quite early, West Coast time, so I could read the decisions before work started. I had worked as a research assistant for Professor Nelson Lund’s amicus brief in Heller. At the time, my alma mater, George Mason School of Law, was ground zero for Second Amendment scholarship. I was ready. Around 7:00 a.m. local time, Heller dropped. At first, I was ebullient. Finally, a decision that recognized a right to keep and bear arms! But then I started to read the decision. And I reached the dicta about “sensitive places” and “dangerous and unusual weapons.” Where did that come from, I thought?  

No matter. Scalia won! Over the ensuing months, the Second Amendment camp was conflicted. Many were enthused about a victory. Others, like Professor Lund, warned that the limiting dicta could undermine any future legal challenges. Immediately after Heller was decided, McDonald v. City of Chicago was filed. At the time, Chicago was one of the only other jurisdictions in the country that banned handguns. And two years later, the Court held that the Second Amendment was incorporated, so the Windy City’s ban fell. Chicago residents like Otis McDonald could celebrate. But Justice Alito’s plurality said nothing about the scope of the right. In July 2010, I lamented “the epic failure of Heller and McDonald.” I wrote, “Without setting any tier of scrutiny, or noting which party bears the burden of proving a constitutional violation, the lower courts would be left uncertain.” I was heavily criticized by members of the Second Amendment camp. They warned that my blog might undermine future legal challenges. If only. Soon enough, it became clear that Justice Breyer’s Heller dissent was the shadow majority opinion. Lower-court judges of all stripes would defer to all manner of gun control laws. By that point, even conservative Judges like Frank Easterbrook began to review gun laws with deferential balancing tests. The future did not look promising. 

Give it time, we were told. Wait a few years, and the Court will eventually clarify the doctrine. The Second Amendment is now normal constitutional law, we were assured. And so time lapsed. 2011. 2012. 2013. 2014. Nothing. Finally, in 2015, Justices Thomas and Scalia wrote two scathing dissents in response to the denial of certiorari. They called out their colleagues for abdicating the Second Amendment. In December 2015, I wrote in National Review, “The lower courts continue to whittle away the Supreme Court’s rulings in District of Columbia v. Heller and McDonald v. Chicago, while seven justices stand by quietly, refusing to intervene.” 

Three months later, Justice Scalia passed away. It looked all but certain that a President Hillary Clinton would replace him. Academics on the left debated whether it was better to overrule Heller, or simply limit the rule to keeping guns at home. (The latter strategy would have been much more prudent). Yet, Donald Trump promised he would appoint judges who were strong on the Second Amendment. And, in large part on that promise, he won. And he appointed two more Justices to the Supreme Court. 

In 2017, Justice Thomas dissented from the Court’s refusal to hear Peruta v. California. That case asked whether the Second Amendment protected a right to conceal carry. Only Justice Gorsuch joined him. And in January 2019, the Court finally granted review in a gun case, New York State Rifle & Pistol Association v. New York City. The Big Apple made it virtually impossible to transport a handgun to shooting ranges within city limits. The Court chose the narrowest and most insignificant Second Amendment case imaginable. A victory in that case would hardly make a dent in gun control laws. But it was not meant to be. New York engineered a flawless effort to moot the case. And the case was dismissed in April 2020. Six weeks later, the Supreme Court denied review in ten Second Amendment cases.  

By Heller’s thirteenth birthday, very little had changed. But the Second Amendment would celebrate after its bar mitzvah. New York and nine other states employed a “may-issue” regime — that is, the state would issue a conceal-carry handgun license only at its discretion. All other states used a “shall-issue” regime. Their regulations provided that the government shall issue a carry license if a person meets certain general objective criteria, such as passing a criminal background check or taking a training course. New York State Rifle & Pistol Association v. Bruen (2022) declared New York’s law unconstitutional. Justice Thomas’s majority opinion rejected any sort of interest-balancing test, but instead adopted a two-step test to review gun-control laws based on the history and tradition of the right. Thomas’s approach asked courts to compare a present-day gun-control law to historical analogues. The Court ruled that New York’s restrictive regime lacked a historical analogue.  

Bruen seemed like a promising start, but it would have a limited effect. New York and other blue states erected many barriers before granting conceal-carry licenses and declared entire regions off-limits. Much of midtown Manhattan was declared to be a gun-free “sensitive place.” Carrying a gun in these urban jungles proved virtually impossible. Moreover, Justice Thomas’s test proved very difficult to apply. Judges threw their hands up in frustration. And less than a year later, the Supreme Court would retreat. 

United States v. Rahimi (2022) upheld the ban on firearms for people subject to domestic violence restraining orders. The Court did not expressly overrule Bruen, but stated that the Second Amendment was not trapped in “amber.” As a result, there was no need to find close analogues between a modern gun-control law and historical precedents. The lower courts now had the discretion they needed to uphold all manner of gun control laws. In 2023, the Second Amendment would have a sad quinceañera.  

This term, the Supreme Court decided two odd Second Amendment cases, which will have virtually no impact on law-abiding gun owners. The first case, United States v. Hemani (2026), was unanimous, a tell that this dispute should never have been that difficult in the first place. Federal law prohibits drug addicts from possessing a firearm. Hemani admitted to using marijuana a few times a week. Justice Neil Gorsuch, writing for the Court, ruled that there was no historical support for disarming a person who uses an intoxicant like marijuana, especially when there is no evidence the person posed a threat to others. Marijuana remains illegal under federal law. Most law-abiding gun owners will take little comfort in this ruling.  

The second case, Wolford v. Lopez (2026), will have even less of an impact. After Bruen, Hawaii and a few other states created a presumption that virtually all businesses open to the public were gun-free zones. Stores, restaurants, and other establishments would have to post signs granting permission to carry guns. The Hawaii Supreme Court upheld this law based on the “Aloha Spirit,” as the people of Hawaii oppose firearms in paradise. Justice Alito, writing for a 6-3 Court, found this law to be unconstitutional. Justice Jackson wrote a vigorous dissent, arguing that the Court has abandoned the Bruen framework. Justice Barrett responded with a nuanced and technical defense of her vision of originalism. Alas, this ruling will change nothing. The people of Hawaii will gladly say Aloha (goodbye) to the Second Amendment by posting “no gun” signs in every window. Residents of Hawaii will still be unable to carry in virtually every public place. 

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. 

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. 

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, is a contributing editor to Civitas Outlook, and is an adjunct fellow at the Manhattan Institute.