Pulling the Trigger: Evaluating Criminal Gun Laws in a Post-Heller World

Article excerpt

Thirty-two people died on April 16, 2007 at the hands of a mentally disturbed gunman at Virginia Tech (1) in Blacksburg, Virginia. (2) Virginia Tech was the most deadly in a long line of school shootings in the United States, (3) and it continues to resonate in an America deeply divided over guns and gun laws. In the wake of the shootings, some lawmakers called for greater regulation, (4) while others proposed allowing people to carry guns on campus to deter future school shooters. (5) Still others called for stricter enforcement of existing laws, particularly those that keep the dangerously mentally ill from obtaining guns. (6) Much of the debate after the shooting was colored by differing understandings of the Bill of Rights. (7)

The debate over guns and, particularly, criminal gun laws became even more complicated in June, 2008, when the United States Supreme Court ruled in District of Columbia v. Heller that U.S. citizens have an individual right to possess guns under the Constitution's Second Amendment. (8) Judges evaluating criminal gun violations are now often faced with Second Amendment challenges that were not typically raised before Heller. (9) Thus, courts are now being asked to decide how best to protect the Second Amendment right while simultaneously keeping guns out of the hands of people who have proven to be dangerous. To err, as Judge J. Harvey Wilkinson has noted, is to risk being "responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights." (10)

The position in which judges find themselves in the post-Heller world is difficult, not just because of the intense feelings elicited on both sides of the gun law debate, but also because of the many issues left undecided by the Court in Heller, including the lack of a coherent method with which to evaluate Second Amendment restrictions. (11) This unarticulated standard is the topic of numerous scholarly articles, (12) yet few discuss the implicit rationale developed in the Heller opinion. (13) This Note develops, explicitly, the method for evaluating criminal gun laws the Court used in Heller. It argues that the Heller Court relied on an amalgam of familiar constitutional doctrines to establish the broad limits of the Second Amendment right to bear arms, with a few modifications. (14) Heller hinted at the appropriate method of evaluation by relying on the context and the characteristics of the law being challenged. (15) Those criminal gun laws that affect only individuals who have definitively forfeited their right to bear arms by being adjudicated a danger to society are presumptively lawful, (16) Most other regulations should be evaluated in a way similar to the "time, place, and manner" restrictions familiar to First Amendment jurisprudence. (17) All remaining criminal gun laws should be evaluated using modified strict scrutiny. (18)

In Part I, this Note explains the bare contours of the fight delineated in Heller and the implicit guidance the Court gave to lower courts to evaluate laws restricting gun ownership. Part II shows how the lower courts have already begun to address the individual Second Amendment right in light of existing criminal laws, and will highlight in particular the way in which lower courts are depending on the explicit language, rather than the implicit reasoning in Heller. Part III demonstrates how the proposed framework is a more explicit and concrete version of that implicit reasoning. Part IV uses several current controversies to illustrate the framework's operation. (19)

I. HEELER AND MCDONALD'S (LIMITED) MEANING

Heller is a lengthy, sweeping opinion with little in the way of explicit holdings. (20) Although the majority exhaustively explained its analysis for finding that the Second Amendment protects an individual's right to bear arms, (21) it left implicit much of the way that right plays out in modern America. …