Abstract
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.