Working Paper No. 12-44:
No Conservative Consensus Yet: Douglas Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment

Author(s):

Nelson Lund

Date Posted: May 2012

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Abstract:

The landmark Supreme Court decisions in District of Columbia v. Heller and McDonald v. City of Chicago held that handgun bans violate the Second Amendment, while indicating that several other kinds of gun control are presumptively constitutional. It is widely recognized that the Court failed to provide clear guidance for lower courts reviewing regulations that were not addressed in those opinions. The federal circuit courts have reached a consensus that such regulations should be analyzed under a “tiers of scrutiny” approach borrowed from other areas of constitutional law, especially the First Amendment.

The consensus may be less stable, or at least less consistent, than it appears. The District of Columbia and the City of Chicago both responded to their losses in the Supreme Court by adopting highly restrictive new regulations. In two cases that challenged some of these regulations, disparate approaches were taken by three prominent circuit judges, all of whom are generally considered judicial conservatives. This short paper compares these approaches, and concludes that one of them is clearly superior to the others.