Since the Supreme Court's recent foray into Second Amendment jurisprudence in District of Columbia v Heller, there has been
much brouhaha over the implications of that decision, both in academia and the popular media more broadly. In their latest paper, presented at last week's Crime and Punishment Workshop, Professors Philip Cook, Jens Ludwig, and Adam Samaha undertake the task of sorting through various legal arguments that have been made after Heller, and identify what they deem to be
sideshows from the social welfare perspective. Their conclusions will likely surprise most readers.
First, the sideshows. The question that seems to have caught everyone's (or at least every lawyer's) attention since Heller is whether the Second Amendment is (or will be)
incorporated (that is, applied to states and municipalities via the Fourteenth Amendment). If not, then Heller will be largely irrelevant, since most of the regulatory action occurs at the state and local level. But the real question is not whether incorporation will occur (it most likely will) but what will be incorporated, argue the professors. In other words, the scope of Second Amendment right as understood by courts—not the universality of its applicability to state and local governments—is likely to matter most when it comes to social welfare.