The Hidden Second Amendment Framework within District of Columbia v. Heller

42 Pages Posted: 30 Oct 2009 Last revised: 28 Apr 2010

See all articles by Andrew R. Gould

Andrew R. Gould

U.S. Attorney's Office for the Southern District of Texas

Date Written: October 29, 2009

Abstract

In District of Columbia v. Heller, the Supreme Court squarely confronted the meaning of the Second Amendment and held that it protected an individual right to keep and bear a firearm for lawful purposes, such as self-defense in the home. Simultaneously, however, the Heller Court refused to set a framework for reviewing Second Amendment claims, leaving the issue open for another day. This issue is crucial: since Heller, lower federal courts have been deluged by Second Amendment claims based on the case, yet such courts have very little guidance as to how to review such claims. This Comment argues that courts have more guidance than they may believe. Using the text of Heller and the constitutional jurisprudence of the Heller majority, this Comment predicts the Second Amendment framework that the Heller majority has in mind or will embrace. Specifically, it articulates a two-pronged test: whether the challenged regulation (1) falls within the scope of the right protected by the Second Amendment, and (2) satisfies a deferential form of strict scrutiny.

This Comment received the 2010 Morgan Prize for most outstanding student note submitted to the Vanderbilt Law Review.

Keywords: Heller, District of Columbia v. Heller, Second Amendment, standard of review, framework, scrutiny, firearm, gun, arms, scope of right, right, review

Suggested Citation

Gould, Andrew R., The Hidden Second Amendment Framework within District of Columbia v. Heller (October 29, 2009). Vanderbilt Law Review, Vol. 62, No. 5, pp. 1535-1576, 2009. Available at SSRN: https://ssrn.com/abstract=1496369 or http://dx.doi.org/10.2139/ssrn.1496369

Andrew R. Gould (Contact Author)

U.S. Attorney's Office for the Southern District of Texas ( email )

1000 Louisiana
Suite 2300
Houston, TX

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