Scrutinizing the Second Amendment

Abstract

The lively debate over the meaning of the Second Amendment has focused on the question of whether the amendment protects a right of individuals to possess arms or a collective right of states to maintain militias free from federal interference. Over the past few years, the individual-rights view has won over at least one federal circuit court and has become the official position of the Bush Administration's Department of Justice. Mostly overlooked in the Second Amendment literature however is the important question of what standard of review would apply to laws burdening the right to bear arms under the individual-rights reading. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right is fundamental or because it is located in the Bill of Rights. In this article, I challenge that assumption and consider the arguments for a contrary conclusion: that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review. My discussion is informed by the example of state constitutional law, where the individual right to bear arms is already well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms and, tellingly, every state to consider the question applies a deferential reasonable regulation standard in arms rights cases. No state applies strict scrutiny or any other type of heightened review to gun laws. Since World War II, the state courts have authored hundreds of opinions using the reasonable regulation test to determine the constitutionality of all sorts of gun control laws. All but a fraction of these decisions uphold gun control laws as reasonable measures to protect public safety. If the federal courts follow this universal practice of the state courts and apply the reasonable regulation standard, nearly all gun control laws will survive judicial review. Moreover, I argue, even if the federal courts decide to apply strict scrutiny, most weapons laws are still likely to be upheld. If so, then any eventual triumph of the individual-rights reading of the Second Amendment is likely to be more symbolic than substantive.

Keywords: Second Amendment, state militias, state consitutional law, weapons law