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Judicial Scrutiny of Challenged Gun

Control Regulations: The Implications

of an Individual Right Interpretation of

the Second Amendment

Scott Gast *

As part of a divorce proceeding, Timothy Joe Emerson was enjoined by a

court from taking any action to threaten or injure his wife. Several

months after the imposition of this injunction, Emerson was indicted

under a federal law prohibiting any person subject to such a court order from

possessing a firearm.1 Emerson challenged his indictment in part on the

ground that this federal law violated his Second Amendment right to keep

and bear arms.2 To the surprise of many in the legal community, the United

States Court of Appeals for the Fifth Circuit was sympathetic to his claim,

holding that the Second Amendment does, in fact, protect an individual’s

right to keep and bear arms.3

Emerson’s victory, however, was not unqualified. While the Fifth Circuit

held that the Second Amendment protects an individual right, it explained

that the right is not absolute:

*J.D., University of Virginia School of Law, 2002. The author would like to thank Professor

Richard Bonnie for his thoughtful comments during the preparation of this paper. The

author is currently an attorney at Covington & Burling in Washington, DC; the views expressed

in this paper are his own.

118 U.S.C. § 922(g)(8) provides in part that “It shall be unlawful for any person . . . who is

subject to a court order that . . . restrains such person from harassing, stalking, or threatening

an intimate partner of such person or child of such intimate partner or person, or engaging in

other conduct that would place an intimate partner in reasonable fear of bodily injury to the

partner or child . . . to ship or transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition.”

2The Second Amendment provides, “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.”

3United States v. Emerson, 270 F.3d 203, 264, reh’g denied, reh’g en banc denied, 281 F.3d

1281 (5th Cir. 2001), cert. denied, 536 U.S. 907 (June 10, 2002) (No. 01-8780).

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 277

Although, as we have held, the Second Amendment does protect individual

rights, that does not mean that those rights may never be made subject

to any limited, narrowly tailored specific exceptions or restrictions for

particular cases that are reasonable and not inconsistent with the right of

Americans generally to keep and bear their private arms as historically

understood in this country.4

The court went on to hold that the deprivation of Emerson’s right in this

case was reasonable, finding “the nexus between firearm possession by the

party so enjoined and the threat of violence, is sufficient, though likely

barely so, to support the deprivation.”5

The Fifth Circuit’s decision in Emerson was significant as the first time

a federal appellate court had recognized an individual right interpretation

of the Second Amendment.6 Shortly thereafter, in early 2003, several judges

of the Ninth Circuit Court of Appeals, while ultimately adhering to that

court’s standing interpretation of the Second Amendment as guaranteeing a

collective right, indicated their own affinity for the reasoning in Emerson.7

4Id. at 261.

5Id. at 264.

6The federal courts of appeals that have addressed the interpretation of the Second Amendment

have favored (and, with the exception of the Fifth Circuit, still do favor) a collective

right interpretation. See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002), reh’g

en banc denied, 328 F.3d 567 (9th Cir. 2003) (“[W]e are persuaded that we were correct in

Hickman [v. Block, 81 F.3d 98 (9th Cir. 1996)] that the collective rights view, rather than the

individual rights models, reflects the proper interpretation of the Second Amendment.”);

United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000) (“It is well-established that the

Second Amendment does not create an individual right.”); Gillespie v. City of Indianapolis,

185 F.3d 693, 710 (7th Cir. 1999) (Second Amendment protection “inures not to the individual

but to the people collectively, its reach extending so far as is necessary to protect their

common interest in protection by a militia.”); United States v. Wright, 117 F.3d 1265, 1273

(11th Cir. 1997), vacated in part on other grounds, United States v. Wright, 133 F.3d 1412

(11th Cir. 1998) (“The concerns motivating the creation of the Second Amendment convince

us that the amendment was intended to protect only the use or possession of weapons that is

reasonably related to a militia actively maintained and trained by the states.”); Love v.

Pepersack, 47 F.3d 120, 122 (4th Cir. 1995) (“[T]he Second Amendment preserves a collective,

rather than individual, right.”); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir.

1992) (“[W]e cannot conclude that the Second Amendment protects the individual possession

of military weapons.”).

7Other courts of appeals have taken note of the Fifth Circuit’s interpretation of the Second

Amendment, without necessarily embracing it. See, e.g., United States v. Price, 328 F.3d 958,

961 (7th Cir. 2003) (acknowledging the Fifth Circuit’s decision in Emerson, as well as the

Attorney General’s position outlined in his letter to the NRA, but concluding that “even were

we inclined to, there is no need for us to wade into that Second Amendment quagmire

because, although it espouses an individual rights approach to the Second Amendment, the

Emerson court agrees with our conclusion that rights under the amendment can be restricted”);

United States v. Wilson, 315 F.3d 972, 973 n.3 (8th Cir. 2003) (acknowledging the Emerson

decision but noting that the Fifth Circuit “nonetheless upheld the constitutionality” of the

challenged firearm law).

In Nordyke v. King (2003), a panel of three circuit judges wrote that, “if we

were writing on a blank slate, we may be inclined to follow the approach of

the Fifth Circuit in Emerson.”8 One judge went even further, writing a

special concurrence to emphasize his view that the Ninth Circuit had gotten

its interpretation of the Second Amendment wrong, and that the court

should now embrace an individual right view of the Amendment.9 Despite

their disagreement with the earlier court decision, the judges acknowledged

that they were bound by the precedent set in Hickman v. Block (1996)10 to

hold that the Second Amendment protects a collective right of the people of

the state. Other judges on the Ninth Circuit were not as sympathetic to

Emerson; on May 6, 2003, the full Ninth Circuit declined the opportunity

to reconsider Hickman by rehearing en banc arguments in Silveira v.

Lockyer (2003) another Second Amendment case11 (the vote on rehearing

came after the panel decision in Nordyke, which criticized Silveira, had

been issued), but not without public dissent from several judges on the

Second Amendment issue.12 The Ninth Circuit’s action leaves the Fifth

Circuit alone—at least for the moment—among the federal appellate courts

in maintaining an individual right view of the Second Amendment.

Growing support for an individual right interpretation of the Second

Amendment has not been limited to the judicial branch of government. On

May 17, 2001, United States Attorney General John Ashcroft wrote the

executive director of the National Rifle Association’s (NRA) Institute for

Legislative Action to express his view that “the text and the original intent

of the Second Amendment clearly protect the right of individuals to keep

and bear firearms.”13 The Department of Justice put the Attorney General’s

words into action when it filed a brief in opposition to a grant of certiorari

in Haney v. United States (2001).14 In that case, the Tenth Circuit had held

that 18 U.S.C. § 922(o), which prohibits the possession of machine guns,

did not violate the Second Amendment, as that constitutional provision was

intended only to preserve the effectiveness of state militias.15 In its brief

opposing Supreme Court review of the Tenth Circuit’s decision, the Justice

8Nordyke v. King, 319 F.3d 1185, 1191 (9th Cir. 2003) (Alarcon, O’Scannlain, and Gould,

JJ.).

9Id. at 1192-93 (Gould, J., concurring).

1081 F.3d 98 (9th Cir. 1996).

11Silveira v. Lockyer, 328 F.3d 567, 568 (9th Cir. 2003).

12See id. (Pregurson, J., dissenting); id. (Kozinski, J., dissenting); id. at 570 (Kleinfeld, J.,

dissenting); id. at 589 (Gould, J., dissenting).

13Letter from John Ashcroft, Attorney General, United States Department of Justice, to

James Jay Baker, Executive Director, National Rifle Association, Institute for Legislative

Action (May 17, 2001) (on file with author).

14264 F.3d 1161 (10th Cir. 2001); Brief for the United States in Opposition to Petition for

Certiorari in United States v. Haney, No. 01-8272 (U.S., May 6, 2002).

15Haney, 264 F.3d at 1165.

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 279

Department acknowledged that “[t]he government agrees with petitioner

that the Fifth Circuit’s decision in Emerson reflects a sounder understanding

of the scope of purpose of the Second Amendment than does the court

of appeals’ decision in the instant case.”16 Nevertheless, the government

supported the decision of the appellate court that the federal law was a

valid restriction on this individual right.17

The individual right interpretation has also received recent support in

Congress. On July 15, 2003, United States Senator Orrin Hatch of Utah

introduced the District of Columbia Personal Protection Act, which would

repeal the District of Columbia’s ban on firearm ownership and restrict the

authority of the District’s council to prohibit such ownership in the future.

In introducing the measure, Senator Hatch noted that “this bill goes a long

way toward restoring the constitutionally guaranteed right of Americans

who reside in the District of Columbia to possess firearms.”18 His bill was

introduced with 21 cosponsors.19 In a similar vein, two public policy organizations

filed separate lawsuits challenging the District of Columbia’s handgun

ban, arguing that it violates the Second Amendment.20

These developments are remarkable in that they signal an apparent

momentum toward the widespread acceptance of an interpretation of the

Second Amendment that protects an individual right to possess a firearm. If

these developments continue and an individual right interpretation becomes

accepted by the courts, another important question closely follows: assuming

that individuals do have the constitutionally guaranteed right to keep

16Brief of the United States, supra note 14. In addition, in its opposition briefs in both the

Haney and Emerson cases, the United States included as an appendix a November 9, 2001

memorandum from the Attorney General to all United States’ Attorneys. In that memo, the

Attorney General notes that, “In my view, the Emerson opinion, and the balance it strikes,

generally reflect the correct understanding of the Second Amendment.” Id.; Brief for the

United States in Opposition to Petition for Certiorari in United States v. Emerson, No. 01-

8780 (U.S. May 6, 2002).

17The United States Supreme Court has denied certiorari in Haney and in the Emerson case.

United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert. denied, 536 U.S. 907 (June 10,

2002); United States v. Emerson, 270 F.3d 203, (5th Cir. 2001), cert. denied, 536 U.S. 907

(June 10, 2002).

18149 Cong. Rec. S9425 (daily ed. July 15, 2003) (statement of Sen. Hatch).

19The original cosponsors were Senators George Allen (R-VA), Conrad Burns (R-MT),

Saxby Chambliss (R-GA), Larry E. Craig (R-ID), Pete V. Domenici (R-NM), Lindsey O.

Graham (R-SC), Kay Bailey Hutchison (R-TX), Zell Miller (D-GA), Jeff Sessions (R-AL), Ted

Stevens (R-AK), Craig Thomas (R-WY), Jim Bunning (R-KY), Ben Nighthorse Campbell (RCO),

John Cornyn (R-TX), Michael D. Crapo (R-ID), Michael B. Enzi (R-WY), Charles E.

Grassley (R-IA), Jim Inhofe (R-OK), Don Nickles (R-OK), Richard C. Shelby (R-AL), and

John E. Sununu (R-NH).

20Arthur Santana, Pro-Gun Groups Split on Tactics; Cato Institute, NRA Quarrel Over

Challenges to D.C. Law, Wash. Post, July 21, 2003, at B5.

and bear arms, how are courts to determine what restrictions on that right

are permissible? Many gun control measures currently on the federal, state,

and local books can be characterized as infringements on the right to keep

and bear arms. If a gun control measure is challenged as violating an

individual Second Amendment right, courts will be required to determine

whether the regulation is consistent with that constitutional guarantee. An

individual right interpretation of the Second Amendment thus raises a host

of issues, including what the scope of the constitutionally protected activity

is, whether a particular restriction on that activity is so substantial as to

amount to an “infringement,” and whether a given infringement is nonetheless

“reasonable,” given the government’s justification.

This appendix attempts to identify and explore the issues that arise

under an individual right interpretation of the Second Amendment, as

well as to demonstrate the need for detailed empirical research on the

efficacy of various gun control measures in advancing purported state

interests in reducing gun-related crime and violence. Part I continues to

trace the fairly recent rise of the individual right interpretation, demonstrating

why such an interpretation is a distinct possibility in the future.

Part II addresses some of the legal issues that arise under such an interpretation.

First, this section explores efforts to define the precise scope of an

individual Second Amendment right. Second, this section considers what

it means to constitute an “infringement” of the right. Finally, Part II looks

at the balancing involved in determining when infringements will be tolerated

because they serve other important state interests. Part III briefly

explains the contribution empirical research can make in the context of

this balancing approach.

I. THE RISE OF AN INDIVIDUAL RIGHT INTERPRETATION OF

THE SECOND AMENDMENT

The meaning of the Second Amendment’s “right to keep and bear

arms” has been the subject of intense scholarly debate in recent decades.

The peculiar wording of the Second Amendment21 and different readings

of the history behind that amendment have offered room for differing

points of view over the character of the right protected. From this

debate, two general views of the extent of the Second Amendment right

have emerged.

21But see Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793

(1998) (surveying contemporary state constitutional provisions and concluding that the phrasing

of the Second Amendment was not peculiar, but rather commonplace, at the time of its

drafting).

STATISTICAL ISSUES AND RIGHT-TO-CARRY LAWS 281

First, the “states’ rights” or “collective rights” view of the Second

Amendment argues that the amendment guarantees only the right of the

states to create and maintain armed militias.22 Under this interpretation,

there is no individual right of private firearm ownership, but rather a

collective right of the people or the states to an armed militia. Advocates of

this model focus on the amendment’s prefatory clause—“A well regulated

Militia, being necessary to the security of a free State”—as limiting the right

granted in the operative clause—“the right of the people to keep and bear

Arms, shall not be infringed.” The framers intended, according to this

theory, that states be free to maintain and arm the type of militias referenced

in the fifteenth and sixteenth clauses of Article I, Section 8 of the

Constitution,23 which give Congress the power to organize, arm, discipline,

and call forth state militias. Outside this limited context, the amendment

provides no protection.

A related (yet distinct) interpretation of the Second Amendment has

been called the “sophisticated collective rights” model.24 Under this view,

the right protected is an individual one, but only to the extent that the

individual protected is a member of a state militia. That is, an individual

has the right to keep and bear arms when the state does not itself provide

the arms for its militia. Proponents of this model read the prefatory clause

as qualifying the right granted by the operative clause. For many supporters

of the states’ rights or the sophisticated states’ rights theories, the demise of

the importance of and need for state militias in modern society has stripped

the Second Amendment of any modern day relevance.25

The second general view of the Second Amendment provides that the

right guaranteed by that provision is the right of an individual to keep and

22See, e.g., Symposium on the Second Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 1

(2000); John Dwight Ingram & Allison Ann Ray, The Right (?) to Keep and Bear Arms, 27

N.M.L. Rev. 491 (1997); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in

the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989).

23Article I, § 8, cl. 15-16 provide: “The Congress shall have Power . . . To provide for

calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel

Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing

such Part of them as may be employed in the Service of the United States, reserving to the

States respectively, the Appointment of the Officers and the Authority of training the Militia

according to the discipline prescribed by Congress.”

24See, e.g., Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities

and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 184-86

(1999); Robert J. Cottrol & Raymond T. Diamond, Book Review: The Fifth Auxiliary Right,

104 Yale L. J. 995, 1003-1004 (1995).

25See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying

Second Amendment, 101 Yale L. J. 551, 554 (1991) (“As we today have no such universal

militia and assurance that contemporary arms-bearers will be virtuous, the Second Amendment

itself is—for now—outdated. . . . The militia was a precondition for the right to arms.

Without a militia, the right is meaningless.”).

bear arms.26 Proponents of this model rely on several arguments in support

of an individual right interpretation, including the history27 and the text of

the amendment (the operative clause grants the right, while the prefatory

clause is simply “an observation, or perhaps a cautionary note”28). In

addition, individual right supporters note that the amendment’s text guarantees

the right to “the people,” not to the states.29 This phrase, it is

argued, has a unique meaning in the Constitution, as discussed in a recent

opinion by the Supreme Court:

“The people” seems to have been a term of art employed in select parts of

the Constitution. . . . The Second Amendment protects “the right of the

people to keep and bear Arms,” and the Ninth and Tenth Amendments

provide that certain rights and powers are retained by and reserved to

“the people.” . . . While this textual exegesis is by no means conclusive, it

suggests that “the people” protected by the Fourth Amendment, and by

the First and Second Amendments, and to whom rights and powers are

reserved in the Ninth and Tenth Amendments, refers to a class of persons

who are part of a national community.30

Giving “the people” different meanings in different contexts within the

Constitution, proponents argue, would be inconsistent. These arguments

lead many commentators to conclude that the Second Amendment guarantees

an individual right to private ownership of firearms.

Academic Support of the Individual Right Interpretation

Support for the individual right view of the Second Amendment is relatively

new to academic literature, but in recent decades this interpretation has

become widely embraced in the scholarship. One commentator has suggested

that the collective rights model was the uncontroversial interpretation of the

Second Amendment for well over a century; then, between 1970 and 1989,

the balance began to tip: 25 law review articles supporting the collective

rights model were published, while 27 articles supporting the individual

26See, e.g., Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793; Nelson

Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996);

William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J.

1236, (1994); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637

(1989).

27For example, the history is said to suggest that the militia envisioned by the Framers was

a “militia of the whole, or at least one consisting of the entire able-bodied male population . . .

equipped with their own arms.” Cottrol & Diamond, The Fifth Auxiliary Right, 104 Yale L.

J. at 1001.

28Id. at 1002.

29Id.

30United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (citations omitted).

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 283

rights interpretation appeared in the legal journals.31 During the 1990s, 58

law review articles were published supporting the individual rights model;

only 29 favored the collective rights model.32 In fact, some went so far as to

suggest that “so great is the new ‘consensus’ about the Second Amendment

that ‘much as physicists and cosmologists speak of the Standard Model in

terms of the creation and evolution of the Universe’ the individual right

model could now be renamed the standard model.”33 One commentator

suggests that these three elements motivated the rise of the individual right

interpretation: “the mass of individual right literature, the endorsement of

five prominent scholars, and the use of the term standard model.”34

Another commentator has summarized recent academic writing on the

Second Amendment by noting that of the 34 law review articles substantially

discussing the amendment published between 1980 and 1996, only 3 endorsed

the states’ rights theory.35 He further noted that the three states’ rights

articles were prepared for symposia in which antigun groups were asked to

provide their positions; two of these were written by “lobbyists for anti-gun

groups” and one by a politician.36 In contrast, that author observed that the

individual right interpretation had attracted the support of the majority of

academics, including some of the “major figures in constitutional law.”37

Another commentator pointed out, however, that a significant number of the

articles supporting the individual right model published between 1970 and

1989 were written by lawyers who had either been employed by or who

represented gun rights organizations, including the NRA.38

Of course, the dearth of collective rights scholarship may have been the

result of the perceived lack of any need for a defense of this interpretation.

According to one commentator, “Until recently, there was little reason for

31Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76

Chi.-Kent L. Rev. 3, 8-10 (2000) (citing Robert J. Spitzer, Lost and Found: Researching the

Second Amendment, 76 Chi.-Kent L. Rev. 349, 366 (2000)). But see David B. Kopel, The

Second Amendment in the Nineteenth Century, 1998 B.Y.U.L. Rev. 1359, 1544-45 (1998)

(arguing that nineteenth century commentators and courts agreed that “the core meaning of

the Amendment was well-settled”: that it protected an individual right to gun firearms).

32Id. at 14 (citing Sptizer, Lost and Found, 76 Chi.-Kent L. Rev. at 377).

33Id. at 22 (quoting Glenn Harlan Reynolds, A Critical Guide to the Second Amendment,

62 Tenn. L. Rev. 461, 462 (1995)).

34Id. at 23.

35See Scott Bursor, Note, Toward a Functional Framework for Interpreting the Second

Amendment, 74 Tex. L. Rev. 1125, 1126 n.13 (1996).

36Id.

37Id.

38Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-

Kent L. Rev. at 8-10 (noting that 16 of the 25 articles supporting the pro-individual right

model published between 1970 and 1989—nearly 60 percent—were written by such lawyers).

scholars agreeing with the collective right model to address the topic.”39

This observation came in an introduction to a Symposium on the Second

Amendment sponsored by the Chicago-Kent Law Review in 2000, which was

designed to “take a fresh look at the Second Amendment and, particularly, the

collective right theory. This is not, therefore, a balanced symposium.”40 The

perceived need for such a “fresh look” suggests that the supporters of the

collective rights interpretation are prepared to step up their involvement in the

debate over the interpretation of this constitutional provision.

The Federal Courts of Appeals and the Second Amendment

Those federal courts of appeals that have addressed the proper interpretation

of the Second Amendment have generally taken the collective or

states’ rights view.41 Illustrative of this approach is the Seventh Circuit’s

opinion in Gillespie v. City of Indianapolis (1999), a case in which a former

police officer challenged a federal law prohibiting persons convicted of

domestic violence from possessing a firearm as violating his Second Amendment

right.42 The court of appeals upheld the law, noting: “The link that

the amendment draws between the ability ‘to keep and bear Arms’ and ‘[a]

well regulated Militia’ suggests that the right protected is limited, one that

inures not to the individual but to the people collectively, its reach extending

so far as is necessary to protect their common interest in protection by

a militia.”43

The Fifth Circuit’s decision in Emerson is a clear break with this trend

(and the Ninth Circuit’s opinion in Nordyke suggests further dissatisfaction

within the federal courts with the perpetuation of a collective rights interpretation).

The Emerson decision creates an obvious split among the circuits

on an important constitutional question, suggesting that the U.S. Supreme

Court may wish to grant certiorari in a Second Amendment case at

some point to provide a definitive answer to this question that divides the

federal circuits. The Supreme Court’s previous Second Amendment jurisprudence

provides little guidance as to how the Court will rule if and when

it undertakes to answer this question.

The Supreme Court and the Second Amendment

As noted at the outset of this paper, the U.S. Supreme Court has recently

declined to hear argument in two cases that squarely presented the

39Id. at 24.

40Id.

41See supra note 6.

42185 F.3d 693 (7th Cir. 1999).

43Id. at 710.

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 285

question of the proper interpretation of the Second Amendment.44 Many

scholars find this unfortunate, as the Court has addressed the proper interpretation

of the Second Amendment on only a few previous occasions—and

commentators sharply disagree as to what the Court actually said in those

instances.

In United States v. Miller (1939), the Court’s most recent and most

extensive discussion of the amendment, the Court upheld the National

Firearms Act against a challenge that it unconstitutionally infringed upon

the Second Amendment right to bear arms. 45 Noting that the Constitution

granted Congress the power to regulate and call forth state militias, the

Court stated that “With obvious purpose to assure the continuation and

render possible the effectiveness of such [Militia] forces the declaration

and guarantee of the Second Amendment was made. It must be interpreted

and applied with that end in view.”46 In that light, the Court found that:

In the absence of any evidence tending to show that possession or use of

“a shotgun having a barrel of less than eighteen inches in length” at this

time has some reasonable relationship to the preservation or efficiency of

a well regulated militia, we cannot say that the Second Amendment guarantees

the right to keep and bear such an instrument. Certainly it is not

within judicial notice that this weapon is any part of the ordinary military

equipment or that its use could contribute to the common defense.47

The Court thus seemed to read the Second Amendment as inextricably

intertwined with the maintenance of state militias.

Many academic commentators share the view that Miller supports a

collective right interpretation of the Second Amendment. As one article stated,

“The Miller Court thus clarified three things regarding the protection afforded

by the Second Amendment: [including,] the right to keep and bear

arms is a collective right for the benefit of the people—it is not an individual

right . . . [thus] only a federal attempt to disarm organized state militias could

possibly constitute a violation of the Second Amendment.”48 Another scholar

has examined Miller in light of the Supreme Court’s subsequent jurisprudence,

concluding that, “These decisions suggest that, without directly facing

the question, the Supreme Court has come to understand Miller as standing

roughly for the collective right view of the Second Amendment.”49

Other commentators have argued that the Court’s opinion in Miller

does not preclude an individual right interpretation of the Second Amend-

44See supra note 17.

45307 U.S. 174 (1939).

46Id. at 178.

47Id. (internal citations omitted).

48Ingram & Ray, The Right (?) to Keep and Bear Arms, 27 N.M.L. Rev. at 501.

49Michael C. Dorf, Symposium on the Second Amendment: Fresh Looks: What Does the

Second Amendment Mean Today?, 76 Chi.-Kent L. Rev. 291, 298 (2000).

ment. Professor Nelson Lund has advanced three reasons for a narrow

reading of Miller: “First, the Court’s statement of its holding invites a

narrow construction. Second, the logic that appears to underlie some of the

Court’s reasoning would lead to manifest absurdities. Third, the Court

heard arguments on only one side of the case.”50 Thus, “Miller should be

read to approve restrictions only on weapons that have the special characteristics

shared by those identified in the National Firearms Act of 1934—

i.e., slight value to law abiding citizens and high value to criminals.”51

Brannon P. Denning and Glenn H. Reynolds have argued that, at the

least, Miller does not deny that the Second Amendment protects an individual

right to firearm ownership—as many federal courts have read that

decision.52 Their article first notes that the Supreme Court did not deny that

the defendants in Miller had standing to raise the Second Amendment’s

guarantee as a defense to the charges against them—thus casting doubt on

the argument that the Supreme Court had adopted a collective rights interpretation

of the amendment (a defense that could be raised only by members

of a militia).53 The authors further argue that the Court’s decision to

reject the government’s primary argument, an iteration of the collective

rights model, undermines any conclusion that Miller adopted a collective

rights interpretation. Rather, the Court reasoned that, assuming the Second

Amendment protects an individual’s right to bear arms, that right only

extended to weapons suitable for use in a militia.54 They emphasize that the

government’s argument was the only one before the Court; the defendants

neither filed briefs nor appeared at oral argument.55

Recent Supreme Court opinions and other writings by the justices may

provide some indication as to where certain justices stand on the question

of the Second Amendment. On one hand, one commentator has noted that

two current justices have suggested that the Court should reconsider the

Second Amendment.56 Justice Clarence Thomas has written that “a growing

body of scholarly commentary indicates that the ‘right to keep and bear

arms’ is, as the Amendment’s text suggests, a personal right.”57 Justice

Antonin Scalia has written that it would be “strange” if the Second Amend-

50Lund, The Ends of Second Amendment Jurisprudence, 4 Tex. Rev. Law & Pol. at 166.

51Id. at 171.

52Brannon P. Denning & Glenn H. Reynolds, Enduring and Empowering: The Bill of

Rights in the Third Millennium: Telling Miller’s Tale: A Reply to David Yassky, 65 Law &

Contemp. Prob. 113, 114 (Spring 2002).

53Id. at 116-17.

54Id. at 118.

55Id. at 116

56Bogus, The History and Politics of Second Amendment Scholarship, 76 Chi.-Kent L. Rev.

at 22-23.

57Id. at 23 n.104 (citing Printz v. United States, 521 U.S. 898, 939 n.2 (1997)).

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 287

ment were found not to grant an individual right.58 On the other hand,

Justice David Souter, joined in a dissenting opinion by Justices John Paul

Stevens, Ruth Bader Ginsburg, and Stephen Breyer, “hinted” that the

amendment might protect a collective right.59

At the very least, the degree of debate over the proper reading of the

Supreme Court’s decision in Miller suggests that the issue remains unsettled.

Thus, it does not appear that the Supreme Court will feel bound by

stare decisis to support a collective rights interpretation of the Second

Amendment, if and when that issue comes before the Court again.

The Incorporation Question

A separate but important question in the interpretation of the Second Amendment

is its reach. The provisions of the Bill of Rights were originally intended to

limit the powers of the federal government. Beginning in the early 20th century,

however, the Supreme Court began to apply some, but not all, of the Bill of

Rights limitations to the states, in a process known as incorporation.60 If the

Second Amendment is found to protect an individual right to keep and bear

arms, the question arises as to whether that protection extends only to federal

restrictions on the right or whether it will reach state law restrictions as well.

Opponents of incorporation point to the Supreme Court’s decisions in

United States v. Cruikshank61 (1875) and Presser v. Illinois62 (1886) for the

proposition that the Second Amendment has not been incorporated to

apply to the states. Concededly, the Presser Court did say that the Second

Amendment “is a limitation only upon the power of Congress and the

National government, and not upon that of the States.”63 Yet it would be

unfair to consider these decisions relevant today, as the doctrine of incorporation

has been completely transformed since those decisions were rendered.

64 Until 1897, the Supreme Court had consistently refused to apply

58Id. (citing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 136-

37 n.13 (1997)).

59Id. (citing United States v. Morrison, 120 S. Ct. 1740, 1765 n.11 (2000) (Souter, J.,

dissenting)).

60See, e.g., Twining v. New Jersey, 211 U.S. 78, 99 (1908) (It “is possible that some of the

personal rights safeguarded by the first eight Amendments against National action may also

be safeguarded against state action, because a denial of them would be a denial of due process

of law.... If this is so, it is not because those rights are enumerated in the first eight Amendments,

but because they are of such a nature that they are included in the conception of due

process of law”).

6192 U.S. 542 (1875).

62116 U.S. 252 (1886).

63Id. at 265.

64See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second

Amendment, 82 Mich. L. Rev. 204, 252-57 (1983).

the Bill of Rights provisions to the states.65 It was not until Chicago,

Burlington & Quincy Railroad v. Chicago66 (1897) that the Court first

suggested that the Due Process Clause of the Fourteenth Amendment could

be a vehicle for incorporation.

Since the early incorporation cases, the Supreme Court has followed a

process of “selective incorporation”—not all provisions of the Bill of Rights

are automatically made applicable to the states. Rather, individual provisions

must pass the test for incorporation outlined in Palko v. Connecticut

(1937): to qualify for incorporation, a right must be “implicit in the concept

of ordered liberty.”67 In Duncan v. Louisiana (1968), the Court elaborated

on this test: the question is “whether a right is among those ‘fundamental

principles of liberty and justice which lie at the base of all our civil

and political institutions,’ whether it is ‘basic in our system of jurisprudence,’

and whether it is a ‘fundamental right, essential of a fair trial.’”68

Since outlining the modern incorporation test, the Supreme Court has

not reexamined the issue of incorporating the Second Amendment’s guarantee

into the concept of due process.69 Commentators have argued that a

faithful application of the modern test, however, would require incorporation

of the amendment.70 These commentators suggest that the text of the

Second Amendment’s prefatory clause, remarking on the right being “necessary

for the security of a free State,” is strikingly similar to the current

incorporation test: “implicit in the concept of ordered liberty.”71 If the

Second Amendment is deemed to protect an individual right, resolution of

the incorporation question will determine how far the guarantee reaches:

which restrictions—federal only or state as well—will be affected.

II. REVIEWING RESTRICTIONS ON AN INDIVIDUAL

SECOND AMENDMENT RIGHT

As previously noted, an individual right interpretation of the Second

Amendment raises a number of issues: how to delineate the scope of the

individual right, identify infringements of that right, and determine which

65See, e.g., Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833) (“The constitution was

ordained and established by the people of the United States for themselves, for their own

government, and not for the government of the individual states”).

66166 U.S. 226 (1897).

67302 U.S. 319, 325 (1937).

68391 U.S. 145, 148-49 (1968) (citations omitted).

69See Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. at 48

(listing three cases in which the Court has declined to address the issue).

70See id. at 50 (“If the Court has the slightest regard for doctrinal consistency, it will have

no choice except to incorporate the Second Amendment”).

71See id. at 53.

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 289

infringements are reasonable. Resolution of each of these issues will impact

the ultimate determination of what gun control regulations will be permissible

under the Second Amendment. For example, the scope of the individual

right could be defined to exclude certain weapons from protection;

thus, regulations touching on those weapons would not impact the constitutional

guarantee at all. In addition, the definition of an infringement will

determine whether a challenged regulation triggers judicial scrutiny or not,

and at what level. Finally, court balancing of the extent of an infringement

against the state interests offered as a justification for the infringement will

be critical in determining what regulations are reasonable.

The Scope of the Second Amendment Right

Determining the scope of activity that comes within the protection of

the Second Amendment is itself an undertaking that raises a number of

questions. For example, what “arms” are protected? What does it mean to

“keep” or “bear” a protected arm? By its very terms, the Second Amendment

appears to protect the right to keep and bear arms from any restriction

whatsoever: “the right of the people to keep and bear Arms, shall not

be infringed.”72 Yet no one seriously argues that private citizens should be

allowed to possess nuclear weapons or shoulder-fired antiaircraft rockets.73

Determining what is protected and what is not, especially given the technological

and societal changes since the amendment was adopted, presents a

difficult task; some have lamented that the process of outlining the scope of

the Second Amendment’s protections with any precision may be impossible.

74 One commentator has argued that the failure to coherently outline

the scope of the right has led to an “erratic and ill-defined pattern of

adjudication” that can be solved only “by developing a final and conclusive

interpretation” of the amendment.75 Determining the scope of protection is

important in answering the threshold question of when the right is infringed.

A narrow interpretation provides more room for the operation of

gun control measures that limit an individual’s ability to own a firearm

72U.S. Const. amend. II (emphasis added).

73See Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. at 41-

42.

74See, e.g., Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (“Considering the

many variable factors bearing on the question it seems to us impossible to formulate any

general test by which to determine the limits imposed by the Second Amendment but that

each case under it, like cases under the due process clause, must be decided on its own facts

and the line between what is and what is not a valid federal restriction pricked out by decided

cases falling on one side or the other of the line.”).

75Michelle Capezza, Comment: Controlling Guns: A Call for Consistency in Judicial Review

of Challenges to Gun Control Legislation, 25 Seton Hall L. Rev. 1467, 1475 (1995).

without raising the difficult balancing issues discussed below. Conversely, a

broad conception of the “right” will implicate a greater number of gun

control regulations as potentially impinging on the right.

Commentators have proposed several means of demarcating the scope

of the Second Amendment’s protections. One of the most commonly advanced

methods is based on looking to the history and antecedents of the

amendment in an effort to construct an idea of what the Constitution’s

drafters had in mind when they ratified it.76 Under this approach, individual

restrictions on private firearms ownership are measured against a

conception of what the framers thought the Second Amendment should

protect.

For example, commentator Don Kates has suggested a tripartite test for

determining what “arms” are protected, developed from his reading of the

history and antecedents of the Second Amendment, as well as the limited

Supreme Court jurisprudence on the subject:

That weapon must provably be (1) “of the kind in common use” among

law-abiding people today; (2) useful and appropriate not just for military

purposes, but also for law enforcement and individual self-defense, and

(3) lineally descended from the kinds of weaponry known to the

Founders.77

Kates goes on to identify two further “limiting principles” on the scope of

the amendment’s protection.78 First, since the amendment only protects

those arms which one can “keep and bear,” “weapons too heavy or bulky

for the ordinary person to carry are apparently not contemplated.”79 Second,

he argues that the common law right that predated the Second Amendment

did not extend to “‘dangerous or unusual weapons’ whose mere

possession or exhibition ‘are apt to terrify the people.’”80

Another approach to defining the scope of the Second Amendment is a

“functional” approach, which again relies on the history of the amendment

76For an examination of the history behind the Second Amendment, see, e.g., Paul

Finkelman, Symposium on the Second Amendment: Fresh Looks: “A Well Regulated Militia”:

The Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195 (2000); Carl

T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998);

Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996);

David E. Vandercoy, The History of the Second Amendment, 28 Val. U. L. Rev. 1007 (1994).

77Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82

Mich. L. Rev. at 259.

78Id. at 261.

79Id. But see Garry Wills, “To Keep and Bear Arms,” New York Review of Books (Sept.

21, 1995) (arguing that the phrase “bear arms” was originally understood as meaning to

serve in the military: “To bear arms is, in itself, a military term. One does not bear arms

against a rabbit.”)

80Id. (quoting 4 W. Blackstone, Commentaries 149; 1 W. Hawkins, Pleas of the Crown,

136 (5th ed. 1771)).

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 291

and its historical predecessors.81 One commentator starts with the recognition

that “the original understanding of the Second Amendment was based

on the belief that arms should perform military, political, civil, and moral

functions” and that therefore “we ought to interpret the Amendment in a

way that proscribes interference with armed citizens’ capacity to perform

those functions. That is, the four functions should serve as benchmarks for

measuring the constitutional limits of interference with the right to keep

and bear arms.”82

In attempting to draw the line between activity protected by the Second

Amendment and activity that is not, a useful analogy can be made to First

Amendment free speech jurisprudence.83 That amendment provides in relevant

part that “Congress shall make no law . . . abridging the freedom of

speech. . . .”84 Like the Second Amendment, this provision speaks in absolute

terms, apparently barring any infringement on the right of free expression.

The courts have, however, sought to define the scope of protected

expression by identifying those classes of speech that do not merit protection.

For example, incitements of illegal activity,85 fighting words,86 and

obscenity87 have been held by the Supreme Court to be outside the area of

constitutionally protected speech.

In determining what is unprotected expression, the Supreme Court has

on occasion looked to the history of the First Amendment.88 But relying on

the history of the amendment and the framers’ intentions regarding the

freedom of speech is problematic, as there is evidence that the framers did

not intend the protection to reach very far; according to one constitutional

scholar, “Supreme Court cases dealing with freedom of expression focus

less on the framers’ intent than do cases involving many other constitutional

provisions. There is relatively little that can be discerned as to the

drafters’ views other than their desire to prohibit prior restraints . . . and

their rejection of the crime of seditious libel.”89

81Bursor, Note, Toward a Functional Framework for Interpreting the Second Amendment,

74 Tex. L. Rev. 1125 (1996).

82Id. at 1146.

83Nelson Lund has proposed using the First Amendment as a model for interpreting the

Second Amendment. See Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga.

L. Rev. at 5.

84U.S. Const. amend. I.

85See Brandenburg v. Ohio, 395 U.S. 444 (1969).

86See Chaplinksy v. New Hampshire, 315 U.S. 568 (1942).

87See Roth v. United States, 354 U.S. 476 (1957).

88See, e.g., id. at 484 (“[I]mplicit in the history of the First Amendment is the rejection of

obscenity as utterly without redeeming social importance.”).

89Erwin Chemerinsky, Constitutional Law: Principles and Policies, at 750 (1997). See also

Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech, at 1-18 (1994) (“One can

keep going round and round on the original meaning of the First Amendment, but no clear

consistent vision of what the framers meant by freedom of speech will ever emerge.”).

More often, the Court has focused on a functional method of determining

the scope of the First Amendment’s protections. In Chaplinsky v. New

Hampshire (1942), the Court stated that:

[I]t is well understood that the right of free speech is not absolute at all

times and under all circumstances. There are certain well-defined and

narrowly limited classes of speech, the prevention and punishment of

which have never been thought to raise any constitutional problem . . . .

such utterances are no essential part of any exposition of ideas, and are of

such slight social value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social interest in order and

morality.90

This approach focuses on the purposes behind the amendment—to foster

the “exposition of ideas” and the search for “truth”—in an approach similar

to the functional approach toward defining the Second Amendment

discussed above.

Defining the scope of the Second Amendment’s protection is one way in

which the permissibility of challenged gun control measures can be evaluated.

For example, if one accepts the Kates test outlined above as an accurate

measure of the scope of the right, it is easy to see why handguns are

clearly protected, while weapons like Saturday Night Specials or switchblade

knives are not.91 It could be argued that the amendment was never intended

by the framers to protect ownership of these weapons from government

regulation, because these weapons are not necessary for military, law enforcement,

or self-defense purposes. Similarly, private ownership of nuclear

weapons would not be protected, as such weapons are not lineal descendants

of the types of weapons known to the framers. Assault rifles present

a more difficult question: if one sees such weapons as direct descendants of

the type of weapons used by the framers, as well as useful for modern

military or law enforcement purposes, ownership of such rifles may be

entitled to some level of protection. In any case, using such a test to determine

the scope of protection provided by the amendment, a court could

determine whether regulations that ban or otherwise restrict ownership of

certain weapons implicate the Second Amendment’s guarantee at all.

“Infringements” on the Second Amendment Right

Once a core of protected activity is identified, the question becomes

when a particular gun control regulation impinges on that protected sphere.

Answering that question is not as straightforward as it may seem: one

90Chaplinsky, 315 U.S. at 571-72.

91Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82

Mich. L. Rev. at 259-60.

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 293

commentator has noted that determining whether an infringement has occurred

is closely bound up with the doctrinal considerations involved in

defining the scope of a right and whether an infringement is justified.

“[C]losely examining the way that courts determine whether a right has

been infringed may be very relevant to defining the scope of the right and to

evaluating the state’s justification for impairing the right.”92 This commentator

goes on to observe that “often the Court does not isolate the issue of

infringement, but rather implicitly subsumes it within an analysis that focuses

on the scope of the right and the state’s justification for any purported

impairment.”93

The Supreme Court has held that not every regulation that impacts a

constitutional right rises to the level of an infringement: “As our jurisprudence

relating to all liberties save perhaps abortion has recognized, not

every law which makes a right more difficult to exercise is, ipso facto, an

infringement on that right.”94 To qualify as an “infringement,” a government

regulation must place a significant burden on the exercise of the right;

indirect or incidental burdens may not be considered to “infringe” on

protected activity.95 The Supreme Court has indicated that the key to determining

whether a right has been infringed is the “directness and substantiality

of the interference.”96

Again, the Supreme Court’s consideration of burdens placed on the

exercise of the First Amendment right to free speech is illustrative. The

critical factor in identifying whether a regulation constitutes “infringement”

on speech—and the level of scrutiny the regulation will then receive—is

whether the regulation is considered content-based or content-neutral.

“Content-based regulations are presumptively invalid”97 and will be permitted

only if they meet the demands of strict scrutiny. Preventing all

speech on a particular subject places a heavy burden on the exercise of the

right (making it impossible to exercise with regard to that particular subject),

clearly rising to the level of an infringement.

“In contrast, regulations that are unrelated to the content of speech are

subject to an intermediate level of scrutiny.”98 Time, place, or manner

92Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in

Constitutional Doctrine, 45 Hastings L.J. 867, 869 (1994) (internal citations omitted).

93Id. at 871 (internal citations omitted).

94Planned Parenthood v. Casey, 505 U.S. 833, 873 (1992).

95See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev.

1175, 1177-78 (1996) (“A law imposing a direct burden will be permitted to override a

fundamental right only if the law is narrowly drawn to serve a compelling interest. In contrast,

laws imposing incidental burdens trigger more deferential judicial scrutiny.”). See also

Brownstein, How Rights Are Infringed, 45 Hastings L.J. 867 (1994).

96Zablocki v. Redhail, 434 U.S. 374, 387 n.12 (1978).

97R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

98Turner Broad. Sys. v. Fed. Communications Comm’n, 512 U.S. 622, 642 (1994).

restrictions are familiar examples of permissible regulations on speech.

Such regulations apply to all speech regardless of its content; they simply

regulate the secondary effects of the exercise of the right. Nonetheless,

limiting the time, place, or manner in which one can permissibly express

one’s ideas does make the exercise of the right more difficult. The key

difference is that the burdens created by these regulations are not so significant

as to cross the threshold to become an “infringement.”

Many gun control regulations burden the exercise of an individual right

to private firearm ownership in one way or another, but many of these

regulations may nevertheless be permissible if the burdens they impose do

not rise to significant levels. At one extreme, a federal or state law that bans

the possession of any type of firearm by an individual would clearly constitute

an infringement of an individual Second Amendment right. Laws that

prohibit whole classes of individuals (e.g., felons, minors, the mentally ill)

from possessing firearms would similarly seem to constitute an infringement

of the right as to those individuals (albeit justifiable ones).99 Laws that

prohibit the possession of whole classes of weapons would appear to make

the exercise of the right more difficult.100 Other provisions like firearm

licensing or registration requirements also arguably place burdens on an

individual’s exercise of the right to bear arms.101 Whether such regulations

amount to “infringements” will depend on the directness and substantiality

of the burden.

As the foregoing discussion illustrates, a permissible gun control regulation

could be characterized in a number of ways. The regulation could be

permissible because it is considered to impact activity that falls outside the

Second Amendment’s sphere of protection. It could be permissible because

it places only an incidental or insignificant burden on the exercise of the

right, and therefore does not constitute an “infringement.” Finally, as the

next section discusses, the regulation could be an “infringement” on protected

activity, but nonetheless permissible because the infringement is justified

by serving a compelling government interest.

99Felons, infants, and those of unsound mind are permissibly prohibited from possessing a

firearm. See Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the

Right to “Bear Arms,” 49 Law & Contemp. Probs. 151 (1986). The permissibility of such

regulations is not because the regulations do not constitute “infringements” but rather because

courts have found such infringements to be “reasonable.” See Part II-C.

100The permissibility of some of these restrictions (e.g., a ban on assault weapons) may be

addressed by a definition of the scope of the Amendment’s protections. See Part II-A.

101Don Kates has argued that licensing or registration requirements do not infringe upon

the Second Amendment because “the historical background of the second amendment seems

inconsistent with any notion of anonymity or privacy insofar as the mere fact of one’s possessing

a firearm is concerned.” Handgun Prohibition and the Original Meaning of the Second

Amendment, 82 Mich. L. Rev. at 266.

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 295

“Reasonable” Infringements on the Second Amendment Right

Even if a regulation is found to rise to the level of an “infringement” of

the Second Amendment’s sphere of protected activity, that regulation may

still be permissible. The Supreme Court has made clear that constitutional

rights are subject to “reasonable” restrictions. The Court has recognized

that there may be legitimate and compelling reasons for a regulation that

outweigh any minimal harm caused by the constitutional infringement.

Determining when such infringements are “reasonable” requires courts to

balance the extent of the alleged infringement against the state interest

offered as a justification for that infringement.

This heightened judicial scrutiny comes in a several forms. The most

demanding level of court examination is strict scrutiny, which is typically

reserved for infringements on so-called fundamental rights.102 Under the

strict scrutiny regime, an infringement will be upheld only if it is narrowly

drawn to serve a compelling state interest. In Moore v. City of East Cleveland

(1977), the Supreme Court formulated the strict scrutiny test as follows:

“When the government intrudes on a fundamental right, this Court

must examine carefully the importance of the governmental interests advanced

and the extent to which they are served by the challenged regulation.”

103 In addition, the government action must be narrowly tailored: the

governmental interests must not be attainable through any less restrictive

means.104

Thus, the first question under strict scrutiny is whether the government

can demonstrate a “compelling” interest that is served by the infringement

of the right. Protecting the public from gun-related crime or gun-related

accidents certainly seems compelling—even pro-individual right commentators

have suggested that such state interests amount to “sufficiently wor-

102The Second Amendment, as an explicit provision of the Bill of Rights, may qualify as a

fundamental right. The Supreme Court has indicated that the express provisions of the Bill of

Rights should not be arranged in any “hierarchy.” See, e.g., Valley Forge Christian College v.

Americans United for Separation of Church and State, 454 U.S. 464, 484-85 (1982) (“[W]e

know of no principled basis on which to create a hierarchy of constitutional values.”);

Ullmann v. United States, 350 U.S. 422, 428-29 (1956) (“As no constitutional guarantee

enjoys preference, so none should suffer subordination or deletion. . . . To view a particular

provision of the Bill of Rights with disfavor inevitably results in a constricted application of

it. This is to disrespect the Constitution.”). In addition, the incorporation test noted earlier

provides guidance as to what rights are so “fundamental” as to require incorporation. Addressing

this related question of incorporation, Professor Nelson Lund has argued, “The right

protected by the Second Amendment meets the Court’s test of what is ‘fundamental’ far more

easily than other rights that have already been incorporated, some of which were never

included in the fundamental documents of the English constitution.” The Past and Future of

the Individual’s Right to Arms, 31 Ga. L. Rev. at 55.

103431 U.S. 494, 499 (1977).

104See Chemerinsky, Constitutional Law, at 643.

thy government purposes.”105 Once a compelling purpose is identified, a

court must then determine whether that interest is furthered by the regulation

in a narrowly tailored way. This prong of the test actually encompasses

two related questions: first, whether the challenged regulation actually does

further the achievement of the government interest, and second, whether

the regulation furthers that interest in a manner that causes the least possible

amount of infringement.

Lund has suggested that First Amendment principles are here again

helpfully translated to the Second Amendment context: “In both cases, the

Constitution establishes a rule that protects a human activity that its Framers

regarded as a natural right. . . . In both cases, the Constitution reflects a

determination that social benefits of giving legal protection to the instruments

needed for the pursuit of those goals will outweigh the inconveniences

arising from their misuse. In both cases, the erection of this barrier

against the state governments will necessarily involve the courts in the

business of balancing the public welfare against the interests of those individuals

whose liberty the government wants to restrict.”106

In the First Amendment context, different types of speech are subject to

different levels of protection, based primarily on an assessment of the value

or “hardiness” of the type of speech involved. For example, political speech

is generally considered deserving of more protection than commercial

speech. This differential treatment is implicit in the balancing process involved

in reviewing restrictions on speech: “The categories of unprotected

and less protected speech reflect value judgments by the Supreme Court

that the justifications for regulating such speech outweigh the value of the

expression.”107

Heightened judicial scrutiny may also be applied through an “undue

burden” standard. This standard was announced in Planned Parenthood v.

Casey (1992), in which the Court held that restrictions on the right to

decide whether to terminate a pregnancy were invalid if they placed an

“undue burden” on the exercise of that right or, in other words, if a

regulation “has the purpose or effect of placing a substantial obstacle in the

path of a woman” seeking to exercise this right.108 The “undue burden”

standard, however, may be unique to the abortion context, and its applicability

to the Second Amendment is unclear.

As noted above, laws that prohibit certain classes of individuals from

possessing any firearms constitute an infringement of the individual Second

105Lund, The Ends of Second Amendment Jurisprudence, 4 Tex. Rev. Law & Pol. at 189.

106Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. at 69.

107Chemerinsky, Constitutional Law, at 801 (Chemerinsky goes on to note, “For each of

the categories . . . the Court’s judgment can be questioned.”).

108505 U.S. 833, 874, 877 (1992).

JUDICIAL SCRUTINY OF CHALLENGED GUN CONTROL REGULATIONS 297

Amendment right. Nonetheless, courts have upheld such regulations as

reasonable: the asserted state interest in protecting the public from individuals

who may not have the capacity or judgment to possess and use a

firearm properly clearly outweighs the extent of the infringement.

III. THE CONTRIBUTION OF EMPIRICAL RESEARCH TO

JUDICIAL SCRUTINY

The balancing common to the various methods of heightened judicial

scrutiny discussed above is only enhanced by empirical analysis of how well

a challenged regulation actually does or does not achieve its purported state

interest. The alternatives to relying on empirical data are either to trust the

intuitions of judges or to completely defer to the judgments of the legislatures

that enact the gun control measures. Both alternatives are unsatisfactory.

The Supreme Court has noted the importance of empirical data in

resolving challenges to First Amendment restrictions. In Nixon v. Shrink

Missouri Government PAC (2000), the Court noted that “[t]he quantum of

empirical evidence needed to satisfy heightened judicial scrutiny of legislative

judgments will vary up or down with the novelty and plausibility of the

justification raised. . . . We have never accepted mere conjecture as adequate

to carry a First Amendment burden. . . .”109 In Renton v. Playtime

Theatres (1986) another First Amendment case, the Supreme Court noted

that, “The First Amendment does not require a city, before enacting . . . an

ordinance, to conduct new studies or produce evidence independent of that

already generated by other cities, so long as whatever evidence the city

relies on is reasonably believed to be relevant to the problem that the city

addresses.”110

Empirical data are also important in the context of the dormant Commerce

Clause balancing test. The Supreme Court has stated that stateimposed

burdens on the free flow of interstate commerce cannot be justified

by “simply invoking the convenient apologetics of the police power.”111 On

another occasion the Court warned that “the incantation of a purpose to

promote the public health or safety does not insulate a state law from

Commerce Clause attack. Regulations designed for that salutary purpose

nevertheless may further the purpose so marginally, and interfere with

commerce so substantially, as to be invalid.”112 The Court has often re-

109528 U.S. 377, 391-92 (2000).

110475 U.S. 41, 51-52 (1986) (emphasis added).

111Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 779-80 (1945) (quoting

Kansas City S. Ry. v. Kaw Valley Dist., 233 U.S. 75, 79 (1914)).

112Kassell v. Consol. Freightways Corp., 450 U.S. 662, 670 (1981).

quired states defending challenged regulations to provide extensive empirical

and statistical evidence to support their proffered justifications.113

Resorting to the mere “incantation of a purpose to promote the public

health or safety” is an intellectually empty means for a government to

justify its challenged gun control regulations. As the Supreme Court has

made clear in other contexts, those justifications must and should be supported

by scientifically verifiable empirical evidence. If the Second Amendment

is ultimately given an individual right interpretation, studies exploring

the efficacy of gun control regulations in reducing gun-related crime and

violence (or in promoting other compelling state interests) will be needed to

accurately balance the true benefits of the regulation against the costs imposed

by infringements on the right.