Academic journal article Washington and Lee Law Review

Arming the Second Amendment-And Enforcing the Fourteenth

Academic journal article Washington and Lee Law Review

Arming the Second Amendment-And Enforcing the Fourteenth

Article excerpt

Table of Contents

I.Introduction....1803

II.The Enforcement Power Since Boerne.....1814

A. Boerne.....1814

1.The Enforcement Power in Its First Post-Boerne Decade....1819

B. The Enforcement Power Today....1832

III. Heller, Its Methodology, and Lower Court Applications.....1838

A. The Second Amendment's Emerging Doctrinal Structure.....1841

B. Second Amendment Doctrine and Congressional Enforcement Power......1845

IV. Arming the Second Amendment: Existing Approaches.......1851

A. The Equal Protection/Tiered Scrutiny Approach.........1852

B. The Due Process Approach......1856

1. Georgia.......1857

2. Lane..........1858

3. Boerne and Florida Prepaid.......1862

V.Arming the Second Amendment: A More Granular Approach......1868

VI.Conclusion: Enforcing the Fourteenth Amendment .... 1882

A. A More Granular Enforcement Clause Jurisprudence..........1883

B. Challenges.......1888

1. The Challenge of Variety...... 1888

2. The Challenge of Complexity..........1889

3. The Challenge of Methodology.......1891

VII.Conclusion: The Imperative of a New Approach...1892

I. Introduction

When in 2008 the Supreme Court concluded that the Second Amendment bestowed a personal right to "keep and bear arms,"1 and when two years later it concluded that that right applied in full to states via either the Fourteenth Amendment's Due Process or Privileges and Immunities Clauses,2 the Court embarked on a new doctrinal voyage.3 One of the more interesting, but less remarked-upon, aspects of that voyage concerns the breadth of congressional power to enforce that right against states via the Fourteenth Amendment's Enforcement Clause.4

The question of Congress's power to enforce the Second Amendment has both a practical and doctrinal significance as well as a broader and more theoretical import. With regard to the former, it is relatively easy to envision a scenario in which Congress might wish to use its enforcement power in the gun rights context. Politically, the Second Amendment right is a popular one in many parts of the country (and, to be more granular, in many parts of many states), yet many states and localities still enact strong gun control measures.5 The resulting regulatory patchwork provides an attractive target for political forces that would prefer more robust gun possession rights at a broader (particularly national) level.6 At the same time, the tragic reality of continued mass shootings will spur continued pushes for gun control legislation, especially at the state and local level where such efforts are more likely to succeed. At the national level, the emergence of control of the political branches by a party committed to robust protection of guns rights makes it likely, or at the very least plausible, that federal legislative initiatives protecting such rights will emerge, especially when states and localities are seen as infringing them.

From a doctrinal perspective, the Second Amendment provides an interesting enforcement power case study for the simple reason that the Enforcement Clause likely provides the most attractive constitutional foundation for federal gun rights legislation. Indeed, the enforcement power is almost tailor-made for legislation protecting gun possession, given the Court's holding in United States v. Lopez7 that simple possession of a gun in a school zone is not conduct regulable under the commerce power.8

The Second Amendment enforcement issue is also interesting for deeper and broader reasons. The first concerns methodology. The Supreme Court has insisted that the Second Amendment right is most appropriately identified by a historically-based original understanding of that right, rather than what Justice Scalia, writing for the Court in District of Columbia v. Heller,9 derided as "interest balancing."10 This insistence that Second Amendment questions be decided based on originalist methodology-a methodology that Justice Scalia himself described as reflecting an understanding of the Constitution as "in its nature the sort of 'law' that is the business of the courts"11-raises important questions about the appropriate role of Congress in contributing to that understanding. …

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