Second Amendment Standards of Review in a Heller World

Nelson Lund

George Mason University School of Law

March 14, 2012

Fordham Urban Law Journal, Vol. 39, No. 5, pp. 1617-1636, October 2012
George Mason Law & Economics Research Paper No. 12-32

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.

Number of Pages in PDF File: 21

Keywords: Antonin Scalia, Chief Justice John Roberts, City of Chicago, compelling interest, Constitution, Douglas Ginsburg, Ezell, gun control, high-capacity magazines, intermediate, McDonald, narrowly tailored, pistol, rational basis, scope, semi-automatic rifles, significant, Solicitor General, strict

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Date posted: March 19, 2012 ; Last revised: November 8, 2013

Suggested Citation

Lund, Nelson, Second Amendment Standards of Review in a Heller World (March 14, 2012). Fordham Urban Law Journal, Vol. 39, No. 5, pp. 1617-1636, October 2012; George Mason Law & Economics Research Paper No. 12-32. Available at SSRN: http://ssrn.com/abstract=2022011

Contact Information

Nelson Robert Lund (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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