The Federal Circuits’ Second Amendment Doctrines

130 Pages Posted: 21 Apr 2016 Last revised: 15 Jul 2017

See all articles by David B. Kopel

David B. Kopel

University of Wyoming College of Law - Firearms Research Center; Independence Institute; Cato Institute; Denver University - Sturm College of Law

Joseph Greenlee

The Heartland Institute; Firearms Policy Coalition

Date Written: April 4, 2017

Abstract

The Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago left lower courts with the responsibility to flesh out many aspects of Second Amendment legal doctrine. This Article explains how the federal Circuit Courts of Appeal have done so. The Article provides a comprehensive synthesis and analysis of the Circuit decisions, covering everything from ammunition to zoning.

Most Circuits use the Two-Step Test propounded by U.S. v. Marzzarella (3d. Cir.). Step One is to determine whether a challenged law implicates Second Amendment rights. If the answer to Step One is "yes", Step Two is to apply some form of heightened scrutiny. In both steps, the burden of proof is on the government.

Step Two can involve intermediate scrutiny, "not quite strict scrutiny," strict scrutiny, or categorical invalidation, depending on various factors. All forms of heightened scrutiny involve consideration of alternatives which might be less burdensome to the right; the stringency of that consideration increases when higher forms of scrutiny are employed.

Not every Circuit case perfectly fits with the emerging doctrinal norms. The Second Circuit, for example, has been a consistent outlier in manipulating standards of review in order to treat the Second Amendment as an inferior, second-class right - contrary to the mandate of McDonald v. Chicago. Even so, analysis of the nearly 150 Circuit Court Second Amendment cases since Heller reveals a mostly consistent methodology.

Keywords: Second Amendment, Circuit Courts of Appeals

JEL Classification: K14, K39, K41

Suggested Citation

Kopel, David B. and Greenlee, Joseph, The Federal Circuits’ Second Amendment Doctrines (April 4, 2017). St. Louis University Law Journal, Vol. 61, No. 2, 2017, Available at SSRN: https://ssrn.com/abstract=2767979 or http://dx.doi.org/10.2139/ssrn.2767979

David B. Kopel (Contact Author)

University of Wyoming College of Law - Firearms Research Center ( email )

United States

HOME PAGE: http://firearmsresearchcenter.org/

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Denver University - Sturm College of Law ( email )

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Joseph Greenlee

The Heartland Institute ( email )

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Firearms Policy Coalition

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