118 Pages Posted: 21 Apr 2016
Date Written: April 21, 2016
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: Suggested Citation
Kopel, David B. and Greenlee, Joseph G.S., The Federal Circuits’ Second Amendment Doctrines (April 21, 2016). Available at SSRN: https://ssrn.com/abstract=2767979