Burger Called the Campaign "One of the Greatest Pieces of Fraud" on the American People

Conservatives perfected a legal strategy that liberals should now adopt, argues a new analysis of the Supreme Court's Second Amendment jurisprudence. The piece traces how gun rights activists spent decades transforming a fringe interpretation into constitutional orthodoxy, culminating in the 2008 landmark ruling D.C. v. Heller. Before that decision, prominent legal figures across the political spectrum—including former Chief Justice Warren Burger, Solicitors General Erwin Griswold and Robert Bork—rejected the individual-rights reading of the Second Amendment.

Burger called the campaign "one of the greatest pieces of fraud" on the American people. Yet through sustained political organizing, industry funding, and judicial appointments, activists succeeded in making their view mainstream. The analysis notes that Heller, often celebrated as an originalist triumph, actually exemplifies "popular constitutionalism"—the theory that public opinion shapes constitutional meaning.

Yale Law professor Reva Siegel documented this dynamic shortly after the ruling. The conservative supermajority has since expanded the right, striking down restrictions on guns in zoos, libraries, and museums, as well as bans on unserialized weapons and machine guns. The piece warns that industry-backed interest groups can mimic mass movements to create rights extending beyond what citizens actually demand, noting that many current gun-rights positions, like unlicensed public carry, remain unpopular with the broader public.