Though the Supreme Court held in District of Columbia v. Heller (1) that the Second Amendment conferred an individual right to keep and bear arms, it left the breadth of that right indefinite. The majority expressly declined to instruct lower courts on whether strict or intermediate scrutiny was appropriate for evaluating Second Amendment restrictions. (2) Recently, in United States v. Bledsoe, (3) a federal district court held that it would continue to apply intermediate scrutiny to laws that merely regulated, rather than proscribed, gun possession. In support of its decision, the court cited language in Heller indicating that a wide range of gun regulations were presumptively lawful. (4) This application of Heller suggests a disconnect between the Supreme Court and the district courts that will apply the decision. Bledsoe relied on familiar standard-of-review analysis, disregarding indications in Heller that gun regulations are lawful when analogous historical restrictions can be found. Its faithfulness to Heller is dubious, but Bledsoe offers a means of determining the scope of the newly-recognized right that is both more practicable and more consistent than the approach suggested by the Supreme Court.
In 2006, Cantrell Bledsoe picked out a pistol at a gun show and, because she was under twenty-one and therefore barred from purchasing firearms from a federally-licensed dealer, gave Calvin Bouldin money to buy it for her. (5) When purchasing the pistol, Bouldin represented that he was the actual buyer, but gave the gun to Bledsoe even before he left the premises of the gun show. (6) The next year, an ATF investigation led agents to Bouldin, who in turn implicated Bledsoe. (7)
Federal prosecutors charged Bledsoe with conspiring to obtain a firearm by making a false statement during a gun purchase in violation of 18 U.S.C. [section][section] 371 and 922(a)(6). (8) She moved to dismiss the indictment, claiming, inter alia, that she could not be liable for purchasing the gun through Bouldin since the Second Amendment granted her an individual right to possess the firearm. (9) District Judge Xavier Rodriguez held that while the Fifth Circuit had recognized an individual right to keep and bear arms, (10) that recognition did not preclude "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable." (11) Accordingly, the court denied the defendant's motion to dismiss, without prejudice to reargue "should Heller announce a new rule." (12)
That announcement came on June 26, 2008, when the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms irrespective of service in a militia. (13) Writing for the Court, Justice Scalia affirmed the D.C. Circuit's decision to strike down a near-prohibition on handgun possession in the District of Columbia. (14) The decision employed extensive historical analysis of the circumstances in which the Second Amendment was drafted and the way it was interpreted soon after adoption. (15) The Court also repeatedly asserted that the right protected by the Second Amendment "is not unlimited," given the amendment's post-ratification history. (16) Though it declined to "undertake an exhaustive historical analysis ... of the full scope of the Second Amendment," it nonetheless asserted that the decision should not cast doubt on a raft of "longstanding" gun restrictions. (17) The Court similarly defended prohibitions on concealed weapons by arguing that "the majority of the 19th-century courts to consider the question" held that such bans were lawful. (18)
The Court declined to establish a standard of review for evaluating gun regulations, reasoning that "there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us." (19) However, it rejected rational basis scrutiny (20) and Justice Breyer's suggestion in his dissent of an "interest-balancing inquiry. …