Appendix C
17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33
34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50
51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67
68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84
85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101
102 103 104 105 106 107 108 109 110 111 112 113 114 115
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.