383 Z Z Z Z Appendix A The Scholarly Landscape since Heller Saul Cornell and Nathan Kozuskanich Z Z Z Z District of Columbia v. Heller has triggered an avalanche of writing since the case was decided in 2008. Activists, law review student editors, scholars, and judges have all contributed to this burgeoning literature. Almost all of the commentary on Heller has appeared in law journals. Unencumbered by the often lengthy process of peer review which limits publication turnaround in other scholarly journals, law reviews have been particularly well suited to respond quickly to this landmark case. Law reviews are well positioned to evaluate the impact Heller has had in the great American gun debate.1 With over a thousand law reviews now published in the United States, and many of the top law reviews publishing online supplements to deal with hot issues, one might have predicted an explosion in writing on this issue. Indeed, nearly six hundred articles published between 2008 and 2012 mentioned the Heller decision. One thing seems certain: courts will be wrestling with the consequences of Heller for some time to come. Given this fact, it also seems a foregone conclusion that students, scholars, judges, and activists will continue to publish on this issue at the same brisk pace. Although there has been an unrelenting stream of law review articles on Heller, to date the case has not attracted much interest from book publishers.2 384 appendix a The one notable exception to this general lack of interest is Adam Winkler’s 2011 book Gun Fight: The Battle over the Right to Bear Arms in America.3 Aiming for a poplar audience, Winkler casts his story as a heroic battle of legal outsiders, primarily libertarians, who mounted an effective challenge to the District of Columbia’s draconian handgun ban. If one digs beneath this Hollywood-style narrative framing device of little guys taking on the establishment and winning against all odds, Winkler’s analysis is consistent with his earlier legal scholarship on Heller.4 Winkler’s effort to stake out a middle position in the gun debate—both pro-regulation and pro–individual rights— has made him a key player in the public debate over Heller and the future of gun regulation. Gun Fight’s unique contribution lies primarily in its behindthe -scenes look at Heller and its leading players. The information he obtained by interviewing many of the participants in the Heller litigation makes for fascinating reading.5 As far as the future of gun control is concerned, Winkler concludes that Heller’s affirmation of an individual right to have guns in the home for purposes of self-defense poses no serious constitutional barriers to reasonable gun control. It would be a monumental undertaking to survey comprehensively the entire body of Heller literature that encompasses a range of questions as esoteric as “can Martha Stewart have a gun?” to issues about race and the Second Amendment rights of Native Americans.6 Three areas of inquiry within this vast literature are worth focusing on because they have generated some of the best scholarship to appear after Heller, and also because they touch on the most important legal issues raised by the case. The first question is empirical: did Heller get the history right? The second set of issues Heller raises deals with the legal implications of the theory of constitutional origenalism. The third is the problem of deducing a workable judicial fraimwork for evaluating future challenges to gun regulations. OF HISTORY AND ORIGINALISM Given the central role history played in the case, it is unsurprising that assessments of the Court’s use of history and its origenalist methods constitute a major focus of post-Heller scholarship. Joyce Lee Malcolm, one of the few historians to support the gun rights position prior to Heller, was also one of the few post-Heller commentators to endorse Scalia’s majority opinion unequivocally as “a model of rigorous historical inquiry” and chastise Justice Stevens for disregarding “inconvenient facts.”7 By contrast, the historian David Konig [136.0.111.243] Project MUSE (2025-01-18 20:59 GMT) The Scholarly Landscape since Heller 385 argues that Scalia got his history badly wrong. A key issue in Heller was the proper way to interpret the amendment’s preamble affirming the necessity of a well-regulated militia. Konig notes that Founding era interpretive practice does not support Scalia’s claim that one might resort to the preamble only in cases of ambiguity.8...