Second Amendment Equilibria


Equilibrium-adjustment theory, first articulated by Professor

Orin Kerr for Fourth Amendment cases, holds promise for rationalizing

Second Amendment doctrine going forward. Like the Fourth Amendment,

the Second Amendment suggests an initial equilibrium—or actually,

multiple equilibria—between government power to possess, use, and control

the implements of violence and private power to do the same. And, like

Fourth Amendment doctrine, Second Amendment doctrine must contend

with both technological and societal change. These changes—e.g., more

deadly and accurate weapons, more public acceptance of concealed carry—

can upset whatever initial balance of gun rights and regulation there may

have been in the initial state. Although this Essay recognizes factors that

make Second Amendment equilibrium-adjustment distinctive and

challenging, the theory may nonetheless allow courts and scholars to get

some purchase on the problem of change in Second Amendment adjudication

and provide a vocabulary to explain the objectives of the emerging doctrine

for the right to keep and bear arms.

Recommended Citation

Darrell A.H. Miller, Second Amendment Equilibria, 116 Nw. U. L. Rev. 239 (2021).

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