HELLER'S FUTURE IN THE LOWER COURTS[dagger]

INTRODUCTION The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller? and the buzz has been considerable. Though much has been made of the majority's historic ruling and of the narrowness of that majority, many commentators have missed an important point. What Heller is most notable for is its complete and unanimous rejection of the interpretation that for nearly seventy years held sway with pundits, academics, and-most significantly-lower courts. The repudiation of this extensive body of case law2 suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez? suggests that lower-court footdragging may limit Heller's reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts. If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity. Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, while making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions. In the pages that follow, we take a look at these aspects of Heller. The triumph of the of the Second Amendment is examined in Part I. Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate or whether, like the Court's attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic. Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls postHeller. I. INDIVIDUAL AND COLLECTIVE RIGHTS Pre-Heller discussions of the Second Amendment noted the conflict between an individual rights model in which the Amendment confers a right to arms on individual citizens, who are entitled to use the courts to resist infringements in the same fashion as other constitutional rights such as free speech or privacy, and a collective rights model in which it does not confer such a right. Under the formulation of this individual right arrived at by a large number of Second Amendment scholars (often referred to as the Standard Model of Second Amendment individual rights interpretation), the right is not absolute but is extensive: 'The purpose of the right to bear arms is twofold: to allow individuals to protect themselves and their families, and to ensure a body of armed citizenry from which a militia could be drawn, whether that militia's role was to protect the nation, or to protect the people from a tyrannical government.4 Set against this individual rights view was the so-called collective rights interpretation, under which the Second Amendment protects only the right of states to maintain an organized militia (often characterized as the modern-day National Guard) and gives rise to no judicially enforceable right to keep and bear arms on the part of individuals. This theory characterized virtually all writing on the subject from the federal courts of appeals after the Supreme Court's 1939 opinion in United States v. Miller,5 though the Miller opinion itself did not adopt a collective rights approach.6 Under the collective rights theory, the Second Amendment, if it were susceptible to judicial enforcement at all, could only be invoked by a state government whose state militia was impaired by federal action. …