No Conservative Consensus Yet: Douglas Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment

Engage: The Journal of the Federalist Society Practice Groups, Vol. 13, No. 2, pp. 30-34, 2012

George Mason Law & Economics Research Paper No. 12-44

6 Pages Posted: 2 Jun 2012  

Nelson Lund

George Mason University School of Law

Date Written: May 31, 2012

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.

Keywords: Antonin Scalia, compelling interest, concealed weapons, defend, Ezell, felons, firearms, government buildings, home, intermediate, machine guns, magazines, mentally ill, pistol, private right, prohibit, rational basis, registration, revolver, schools, self-defense, semi-automatic, shotguns, strict

Suggested Citation

Lund, Nelson, No Conservative Consensus Yet: Douglas Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment (May 31, 2012). Engage: The Journal of the Federalist Society Practice Groups, Vol. 13, No. 2, pp. 30-34, 2012; George Mason Law & Economics Research Paper No. 12-44. Available at SSRN: https://ssrn.com/abstract=2071273

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

Paper statistics

Downloads
76
Rank
260,193
Abstract Views
998