In the decade since District of Columbia v. Heller, the paradigm-shifting 2008 Supreme Court case affirming the right of individuals to keep handguns in the home for self-defense, lower courts have struggled to reconcile the case’s broad conception of the Second Amendment with longstanding restrictions on the keeping and bearing of firearms. A burgeoning literature has urged courts and scholars to approach this tension with an eye toward Heller’s repeated proclamations that self-defense is the “central component” of the Second Amendment right, suggesting that principles of common law self-defense may offer insight into the scope of the Amendment’s protections. Examining self-defense law as a U.S. tradition, this Note contends that the right to self-preservation has evolved significantly from its common law origins, with different states adopting different standards, procedures, and definitions over time. This diversity makes it difficult to extract universal principles of self-defense law for purposes of shaping Second Amendment doctrine.
But even as the law has changed across time and jurisdictions, federal courts have been consistent in allowing states to define the contours of the self-defense right. Therefore, courts today should recognize self-defense law as a site of iterative policy development, and treat laws regulating the instrumentalities of self-defense (for example, firearms) with a degree of deference. This Note argues that this approach, which I term “Second Amendment Federalism,” comports with the dictates of Heller and provides a roadmap for doctrinal development.
* J.D. Candidate, Stanford Law School, 2021. Many thanks to Hannah Shearer, Eric Ruben, Joseph Blocher, Bernadette Meyler, Barbara Fried, and the students of the autumn 2019 Legal Studies Workshop at Stanford Law School for their insightful feedback. I am also grateful to the team at the Stanford Law Review for their meticulous editing—particularly Leslie Bruce, Katherine Cole, Olivia Goldberg, Will Janover, Anthony Kayruz, Diana Li, Samantha Noh, Lauren Shepard, Cameron Silverberg, and Sam Ward-Packard.