Working Paper No. 12-32:
Second Amendment Standards of Review in a Heller World

Author(s):

Nelson Lund

Date Posted: March 2012

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Abstract:

In District of Columbia v. Heller, the Supreme Court recognized the Second Amendment right of individuals to keep and bear arms, and struck down a ban on civilian possession of handguns. The lower courts have since confronted numerous challenges to less restrictive regulations, many of which have required judges to conjure guidance from the highly enigmatic Heller opinion.

Surprisingly, perhaps, the federal courts of appeals have quickly reached a consensus about the proper analytical framework to apply. That framework draws heavily on a tiers-of-scrutiny approach borrowed largely from the Supreme Court’s First Amendment jurisprudence. In a recent case from the D.C. Circuit, Judge Brett Kavanaugh’s dissenting opinion mounted a fundamental challenge to this framework. Judge Kavanaugh argues that the consensus framework was rejected in Heller, and that courts have been instructed to use a different approach based on American history and tradition.

This article maintains that Heller did not dictate the approach proposed in Judge Kavanaugh’s dissent, and that his approach is unworkable. The consensus approach taken by the D.C. Circuit is preferable to Kavanaugh’s, but it was misapplied by the majority. The best approach is exemplified in a Seventh Circuit opinion written by Judge Diane Sykes, who provided an unusually intelligent interpretation of Heller and displayed an appropriate respect for the constitutional right at stake in Second Amendment litigation.