Second Amendment Redux: Scrutiny, Incorporation, and the Heller Paradox

By Levy, Robert A. | Harvard Journal of Law & Public Policy, Winter 2010 | Go to article overview

Second Amendment Redux: Scrutiny, Incorporation, and the Heller Paradox


Levy, Robert A., Harvard Journal of Law & Public Policy


In District of Columbia v. Heller, (1) the final opinion of the Supreme Court's 2007 term, Justice Antonin Scalia reinvigorated the Second Amendment. Writing for a 5-4 majority, Justice Scalia held unequivocally that the Second Amendment protects an individual right to possess a firearm in the home for self-defense, unconnected with militia service. (2) He also held that the three Washington, D.C., laws that Heller challenged were unconstitutional: first, the outright ban on all handguns acquired after 1976; second, the ban on carrying handguns acquired before 1976 from room to room without a permit, which could not be obtained; and third, the requirement that rifles and shotguns in the home had to be unloaded and either disassembled or trigger-locked. (3)

Three issues received less attention in the majority and dissenting opinions, but have significant implications. First, what gun regulations are now permissible? Second, will the Second Amendment apply against state and local governments? Third, was the Heller decision a hidden victory for gun controllers?

I. SCRUTINY: WHAT GUN REGULATIONS ARE PERMISSIBLE AFTER HELLER?

Justice Scalia acknowledged that the Second Amendment, like the First, is not absolute. He noted, for example, that courts had upheld concealed carry prohibitions in the past, although he stopped short of saying courts should uphold them in the future. (4) The same goes for licensing requirements, which Heller did not challenge. (5) Justice Scalia went even further to state that the Court's opinion did not "cast doubt on longstanding prohibitions on 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." (6) He added that he could also find support in "the historical tradition of prohibiting the carrying of dangerous and unusual weapons." (7)

Heller was likely well advised not to have antagonized potential allies among the Justices by demanding deregulation of weapons like machine guns. Heller's success was due in part to the moderate, incremental relief that he sought. Subsequent cases will have to resolve what weapons and persons can be regulated and what restrictions are permissible. Those questions will depend in large measure on the standard of review that the Court chooses to apply--an issue Heller does not resolve despite considerable attention to that subject in various amicus briefs, including one by Solicitor General Paul Clement.

Solicitor General Clement suggested that the Court apply a form of "heightened" scrutiny in reviewing gun regulations. Specifically, he advised the Court to consider "the practical impact of the challenged restriction on the plaintiff's ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives)." (8) Although Solicitor General Clement acknowledged that the D.C. gun ban "may well fail such scrutiny," he expressed concern that the circuit court had mistakenly applied a different per se test, which would preclude "any ban on a category of 'Arms' that can be traced back to the Founding era." (9)

Heller argued that the D.C. gun ban was unconstitutional no matter which standard of review the Supreme Court applied. Accordingly, said Heller, the Court did not have to address the standard of review question. On the other hand, should the Court decide to tackle that issue, Heller urged that "strict," not heightened, scrutiny be the standard. (10) To justify a gun control regulation under strict scrutiny, the government would have to demonstrate a compelling need for the law and then show that any restrictions were narrowly tailored--that is, no more invasive than necessary to achieve the government's objectives. (11) Traditionally, the Court has been more rigorous in scrutinizing government regulations that infringe on a "fundamental" right: one that is "implicit in the concept of ordered liberty" (12) or "deeply rooted in this Nation's history and tradition[s]. …

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