Now that the Supreme Court has ruled in District of Columbia v. Heller that the Second Amendment prohibits general disarmament, the temptation is to view Heller as the central obstacle to effective gun controls. This is a mistake born of our failure to confront the incoherence of supply-side controls pre-Heller. While Heller technically prohibits the supply-side ideal, supply-side rules are, and long have been, blocked by structural barriers rooted in the nature of our armed society—viz., 300 million guns tightly held by people who believe they are uniquely useful tools.
Two things are foreseeable. First, supply regulations on the edges of Heller will have only symbolic effect because Heller plainly bars laws intended to cut supply to zero. Second, because Heller formally blocks the supply-side ideal, its trajectory will be the focus of political and constitutional warfare. Underlying this will be the mistaken perception that, with sufficient political shift and Heller nullified, supply controls still might work in America. Understanding the structural barriers to supply controls will help us avoid that mistake.
This Article will illuminate those structural barriers by removing, theoretically, the constitutional impediment of Heller and the political impediments to the supply-side ideal. Assume, therefore, that Heller is reversed or explained away. Assume further that the political barriers to sweeping supply controls are overcome. Now imagine gun control in America.
Part I elaborates on the supply-side ideal as the foundation of our most ambitious gun control proposals. Part II explains the primary structural challenges to the supply-side ideal and introduces the remainder problem as a peculiarly American obstacle to supply controls. Part III presents the remainder problem and the defiance impulse as both cultural and physical phenomena that block supply-side rules. Part IV evaluates a series of familiar gun control proposals in the context of the structural (and incidentally constitutional) barriers to supply-side regulation. [footnotes omitted]
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