Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias and Criminal Street Gangs

Urban Lawyer, Vol. 41, p. 1, 2009

Chapman University Law Research Paper No. 08-203

93 Pages Posted: 22 Aug 2008 Last revised: 3 Apr 2009

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: March 4, 2009


The decision of the United States Supreme Court in District of Columbia v. Heller ended one debate about the Second Amendment while beginning another. Prior to Heller, the principal point on which courts and scholars had joined issue was whether the Second Amendment secures an individual right to bear arms or a right to participate in an organized militia. In Heller, the Court came down on the individual-rights side while resolving little else about the extent to which the Second Amendment will constrain the power to regulate firearms. Among the many questions left for future litigation, the two most important are the extent to which firearms regulations must be justified in order to withstand constitutional attack, and whether the Second Amendment is applicable to the state and local laws as a result of its "incorporation" within the Fourteenth Amendment. This article addresses these critical issues of doctrinal "plumbing" in the wake of Heller. Part I considers the stakes in the constitutional debates to come - a consideration that bears importantly on both incorporation and the standard of scrutiny. Part I argues that the available data suggest that stringent regulation of concealable weapons played an important role in driving down the rate of violent crime. By virtue of the underappreciated interaction between the constitutional rules governing search and seizure and the scope of firearms regulation, gun control laws enhance the ability of the police to utilize aggressive stop-and-frisk tactics when they suspect that a firearm is being carried unlawfully. These tactics, in turn, make it risky for gangs and drug dealers to carry firearms in public, thereby reducing the rate of violent confrontations in public places. The Second Amendment right articulated in Heller, however, imperils such efforts to drive firearms off the streets.

Part II turns to the historical evidence on incorporation. There has been something of a trend in the academy in favor of the view that incorporation of the Bill of Rights reflects the intentions of the authors of the Fourteenth Amendment. This scholarship, however, fails to take account of the emerging consensus among originalists that constitutional interpretation should not be guided by the intentions of constitutional drafters but instead by the meaning of the text as it would have been originally understood by the public - a view embraced by Heller itself. The historical case for incorporation is deeply problematic when measured against original public meaning. While many of those most instrumental in the crafting the Fourteenth Amendment likely did believe that it rendered the first eight amendments applicable to the states, there is only deeply conflicting evidence about whether this had become an accepted public meaning when the Fourteenth Amendment was ratified. The historical evidence therefore supplies no satisfactory basis for resolving the incorporation question.

Part III considers the case for incorporation under current doctrine, which asks whether a given right is "necessary to an Anglo-American regime of ordered liberty." To determine whether Second Amendment rights are sufficiently fundamental to merit incorporation, it is first necessary to examine the nature of those rights; and that leads to the Second Amendment standard of scrutiny. Heller contains an important clue; it defines the "militia" to include all those "physically capable of acting in concert for the common defense"; the militia is accordingly not limited to only the members of an "organized militia." It follows that textual support for regulatory power over firearms is found in the Second Amendment's preamble, which, Heller explains, is properly consulted to clarify the Amendment. The preamble envisions a "well regulated militia"; thus, the preamble indicates that the entire populace capable of bearing arms may be "well regulated." Regulation, however, cannot render the right itself nugatory, and for this reason, Heller suggests that firearms regulation should be sustained as long as it poses no undue burden to the right to keep and bear arms, much as the Court has evaluated abortion regulations. Part III then concludes that even this qualified version of the Second Amendment right does not merit incorporation. The eighteenth-century conception of the right to bear arms has not fared particularly well in subsequent jurisprudential history, and, even more important, in many high-crime urban areas, it may be effectively impossible to create the type of "well-regulated militia" envisioned by the Second Amendment. The demands of ordered liberty argue for leaving gun control policy at the state and local level.

Keywords: Second Amendment, right to bear arms, District of Columbia v. Heller, criminology, violent crime, homicide, policing, Fourteenth Amendment, incorporation

Suggested Citation

Rosenthal, Lawrence, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias and Criminal Street Gangs (March 4, 2009). Urban Lawyer, Vol. 41, p. 1, 2009, Chapman University Law Research Paper No. 08-203, Available at SSRN:

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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