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Is Current Second Amendment Jurisprudence Premised Upon a “Misquote”?
A New York Times article alleges that a key test in the Supreme Court’s 2008 Heller ruling rests on a misquotation of English jurist William Blackstone. This commentary argues that the allegation misreads the ruling’s legal citations, and says the distinction matters as the court prepares to consider assault-weapons bans.
Heller says the historical tradition permits restrictions on “dangerous and unusual weapons”, while Blackstone wrote “dangerous or unusual”. The article points out that Blackstone is cited with a “See” signal, which indicates supporting material rather than a direct quotation, and that the cited authorities are listed chronologically. It also reports that former Scalia clerk John Bash says he explained this citation point to one of the Times reporters before publication.
In short
- Commentary disputes claims that Heller misquoted Blackstone.
- Heller’s citations signal support, not a direct quotation.
- The issue comes as the Supreme Court considers weapons bans.
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The case for
The Times’s concern is that changing Blackstone’s “or” to “and” may narrow the historical basis for regulating weapons: a weapon could be restricted if it is dangerous or unusual, whereas the Heller formulation appears to require both qualities. If that wording helped shape modern Second Amendment doctrine, clarifying whether it accurately reflects the historical sources could matter to current disputes over assault-weapons bans.
The case against
The commentary’s response is that Heller does not present “dangerous and unusual” as a direct quotation from Blackstone: the citation uses “See”, signalling supporting authority, and the sources are arranged chronologically. On that reading, the Times’s allegation treats a broader legal synthesis as though it were a misquotation, and the distinction matters when assessing both Heller’s reasoning and the case for revisiting its test.
Explained simply
The Second Amendment is the part of the US Constitution concerning the right to keep and bear arms. In 2008, the Supreme Court’s Heller ruling recognised an individual right to possess a gun for lawful purposes such as self-defence, while also saying that the right has limits.
The ruling referred to a historical tradition allowing restrictions on “dangerous and unusual weapons”. William Blackstone was an influential English jurist whose writings are often cited in legal arguments about history; he described such weapons as “dangerous or unusual”. The dispute is over how Heller used Blackstone’s work as supporting context, rather than presenting those words as a direct quotation.
The interpretation matters because courts use Heller’s historical approach when assessing gun laws, including bans on some weapons. The Supreme Court is preparing to consider assault-weapons bans, so how the ruling’s historical sources are understood may affect the arguments before it.