Second Amendment: The Dozen Yardsticks for Measuring its Scope

34 California Litigation Reporter (Apr. 2021, Forthcoming)

Thomas Jefferson School of Law Research Paper No. 3740145

7 Pages Posted: 2 Dec 2020

Date Written: November 30, 2020

Abstract

There will be 12 functioning, proposed, or allegedly rebuffed benchmarks to choose from when the U.S. Supreme Court finally drafts its Second Amendment blueprint. The Court’s 2008 precedent confirmed the fundamental nature of the constitutional right to keep guns in the home for self-defense. The Court’s 2010 McDonald decision extended Heller to all cities and states−via selective incorporation. But neither Heller nor McDonald embedded a template for future legal challenges to the nation’s gun regulations. In the interim, the Supreme Court has refused to determine any of the proffered Second Amendment decisions from state and federal courts. At some point, the Court will presumably unholster its reluctance to adjudicate this legal gunfight. The Courts will hopefully tender a full-throated test for assessing the general reach of the Second Amendment. Thus, the objective of this essay is to: (a) present the dozen possible approaches, drawn from various judicial precedents; and (b) spotlight the extraordinary challenge the Court will face−given the perhaps naïve assumption that one size fits all.

Keywords: Second Amendment; gun rights versus gun regulation; effect of selective incorporation; public safety; levels of judicial scrutiny; text, history, and tradition approach; circuit split.

JEL Classification: H56, H7, I00, I18, I31, L83, L88, R28, R50

Suggested Citation

Slomanson, William R., Second Amendment: The Dozen Yardsticks for Measuring its Scope (November 30, 2020). 34 California Litigation Reporter (Apr. 2021, Forthcoming), Thomas Jefferson School of Law Research Paper No. 3740145, Available at SSRN: https://ssrn.com/abstract=3740145 or http://dx.doi.org/10.2139/ssrn.3740145

William R. Slomanson (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States

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