Where Do We Go from Here? Handgun Regulation in a Post-Heller World

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INTRODUCTION

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.1

Debate over the meaning of these twenty-seven words has run rampant for centuries. The conflict has revolved around the basic meaning of the Second Amendment: does it protect an individual's right to own a gun, or does it merely extend as far as was necessary to maintain the state militias in 179 1?2

In June 2008 the Supreme Court directly addressed the individual versus collective right question in District of Columbia v. Heller.3 The case involved gun laws in Washington, D. C. that made it a crime to carry any unregistered firearm, but prohibited the registration of handguns.4 The D. C. laws also required all lawfully owned firearms in the home to be unloaded and disassembled.5 The plaintiff, Dick Heller, a special police officer at the Federal Judicial Center, was "authorized to carry a handgun while on duty," but was denied a permit to have his handgun in his home.6 He challenged the laws as an unconstitutional restraint on his Second Amendment right to keep and bear arms.7 Speaking to the actual meaning of the Second Amendment for the first time in history,8 the Court ruled that "[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."9

This seemingly clear determination, however, left open many questions about the extent of this newly-recognized individual right.10 Federal, state, and local laws regulating gun ownership abound in this country. 1 1 While the Court proclaimed that the Heller decision does nothing to undermine regulations prohibiting "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,"12 the establishment of an individual right to own a gun opens the door for gun rights advocates to challenge the constitutionality of state regulations that limit that right.

This Note will examine a few areas of state firearm laws that are likely to be addressed in the cases following Heller. Part I of this Note will briefly discuss the nature of the right established by Heller and the likelihood that the Court will incorporate the Second Amendment, applying it to the states. It will argue that under Court precedent, the Second Amendment qualifies as a fundamental right that should apply to the states as well as the federal government. Part II will argue that the acknowledgment of an individual right to gun ownership, and the language used in Heller, indicate the Court's intent to adopt a standard of strict scrutiny when evaluating future challenges to gun regulations. Part III will examine the areas of gun regulation that are most vulnerable to constitutional challenges under strict scrutiny, including discretionary permitting systems for the concealed carrying of weapons, and laws that designate public colleges and universities as gun-free zones.

I. INCORPORATION

While the Court's decision in Heller recognized an individual right to bear arms,13 the scope of the case limited the Court's opinion to the Second Amendment's applicability to action by the federal government.14 Because Washington, D. C. is under federal jurisdiction, the Court was not ruling on state action.15 In 1937, in Palko v. Connecticut,16 the Court blazed a new trail in constitutional law by establishing that, under certain circumstances, the rights protected under the Bill of Rights would also apply to the states.17 However, without this "incorporation," the text of the Bill of Rights limits its protection to actions by the federal government.18 The Court has never taken explicit steps to incorporate the Second Amendment against the states.19 In fact, past Supreme Court cases have explicitly limited the Second Amendment's reach to the federal government. …