Through a consideration of the assault weapons question, this Article engages the criticism that District of Columbia v. Heller provides an insufficient standard for resolving many questions that emerge under the newly-clarified Second Amendment. After arguing that assault weapons might enjoy threshold protection under Heller's common-use test, the Article shows how the principles grounding the Supreme Court's abortion jurisprudence are especially suited for resolving aspects of the question that Heller does not explicitly answer. Particularly, this Article shows how constitutional protection of the best methodology for preserving life or health-advanced by the liberal wing of the Court in abortion jurisprudence-is an especially well-suited standard for resolving contested claims to the special utilities of assault weapons. This Article further argues that refusal by Court liberals to extend this principle to the assault weapons case will encourage the Attitudinalist Critique that passions rather than principles drive Justices' decisions on controversial questions.
Nicholas J. Johnson,
Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons, and the Attitudinalist Critique,
60 Hastings L.J. 1285
Available at: https://repository.uchastings.edu/hastings_law_journal/vol60/iss6/5