Unintended Consequences: The Supreme Court's Interpretation of the Second Amendment in District of Columbia V. Heller Could Water-Down Fourth Amendment Rights

Abstract

This article analyzes Heller, the Supreme Court’s recent case considering whether to view the Second Amendment’s right to keep and bear arms as a collective right premised on maintaining militias, or as an individual right. Heller held that the Second Amendment codified an individual right unconnected with service in the militia. This article does not analyze the Second Amendment or the precedent interpreting it. Instead, this work examines the potential that Heller, in expanding the right to keep and bear arms, might inadvertently corner the Court into limiting Fourth Amendment rights due to concerns for police safety. Specifically, this article considers Heller’s potential erosion of Fourth Amendment freedoms in the contexts of street encounters, searches incident to arrest, and officer intrusions into the home.