Textualism, Heller, and the Second Amendment: Terms of Art and Language Drift
By David T. Hardy
Publication Date
April 17, 2025
Abstract
In District of Columbia v. Heller, the Supreme Court recognized that the Second Amendment guarantees an individual right to keep and bear arms and adopted an originalist and (largely) textualist approach to interpreting that right. Both teachings were reinforced by subsequent rulings in McDonald v. City of Chicago, Caetano v. Massachusetts, New York State Rifle & Pistol Ass’n v. Bruen, and United States v. Rahimi.
Under this originalist/textualist approach, however, two questions have been raised. First, did the use of “bear arms” encompass civilian possession of arms for private self-defense? Second, to whatever extent that the Second Amendment’s prefatory clause, regarding the necessity of a “well regulated militia,” sheds light on the following clause guaranteeing a right to keep and bear arms, does the reference to “well regulated” suggest that regulation of the right is acceptable? This paper explores these two questions.
Recommended Citation
David T. Hardy, Textualism, Heller, and the Second Amendment: Terms of Art and Language Drift (Firearms Rsch. Ctr., Working Paper No. 2025-4).
