Pulling the trigger: evaluating criminal gun laws in a post-Heller world.

Author:Golimowski, Jeff

Thirty-two people died on April 16, 2007 at the hands of a mentally disturbed gunman at Virginia Tech (1) in Blacksburg, Virginia. (2) Virginia Tech was the most deadly in a long line of school shootings in the United States, (3) and it continues to resonate in an America deeply divided over guns and gun laws. In the wake of the shootings, some lawmakers called for greater regulation, (4) while others proposed allowing people to carry guns on campus to deter future school shooters. (5) Still others called for stricter enforcement of existing laws, particularly those that keep the dangerously mentally ill from obtaining guns. (6) Much of the debate after the shooting was colored by differing understandings of the Bill of Rights. (7)

The debate over guns and, particularly, criminal gun laws became even more complicated in June, 2008, when the United States Supreme Court ruled in District of Columbia v. Heller that U.S. citizens have an individual right to possess guns under the Constitution's Second Amendment. (8) Judges evaluating criminal gun violations are now often faced with Second Amendment challenges that were not typically raised before Heller. (9) Thus, courts are now being asked to decide how best to protect the Second Amendment right while simultaneously keeping guns out of the hands of people who have proven to be dangerous. To err, as Judge J. Harvey Wilkinson has noted, is to risk being "responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights." (10)

The position in which judges find themselves in the post-Heller world is difficult, not just because of the intense feelings elicited on both sides of the gun law debate, but also because of the many issues left undecided by the Court in Heller, including the lack of a coherent method with which to evaluate Second Amendment restrictions. (11) This unarticulated standard is the topic of numerous scholarly articles, (12) yet few discuss the implicit rationale developed in the Heller opinion. (13) This Note develops, explicitly, the method for evaluating criminal gun laws the Court used in Heller. It argues that the Heller Court relied on an amalgam of familiar constitutional doctrines to establish the broad limits of the Second Amendment right to bear arms, with a few modifications. (14) Heller hinted at the appropriate method of evaluation by relying on the context and the characteristics of the law being challenged. (15) Those criminal gun laws that affect only individuals who have definitively forfeited their right to bear arms by being adjudicated a danger to society are presumptively lawful, (16) Most other regulations should be evaluated in a way similar to the "time, place, and manner" restrictions familiar to First Amendment jurisprudence. (17) All remaining criminal gun laws should be evaluated using modified strict scrutiny. (18)

In Part I, this Note explains the bare contours of the fight delineated in Heller and the implicit guidance the Court gave to lower courts to evaluate laws restricting gun ownership. Part II shows how the lower courts have already begun to address the individual Second Amendment right in light of existing criminal laws, and will highlight in particular the way in which lower courts are depending on the explicit language, rather than the implicit reasoning in Heller. Part III demonstrates how the proposed framework is a more explicit and concrete version of that implicit reasoning. Part IV uses several current controversies to illustrate the framework's operation. (19)


    Heller is a lengthy, sweeping opinion with little in the way of explicit holdings. (20) Although the majority exhaustively explained its analysis for finding that the Second Amendment protects an individual's right to bear arms, (21) it left implicit much of the way that right plays out in modern America. (22) Four years and hundreds of cases later, (23) the impact of this opacity is becoming clear: the lower courts are struggling to determine how to address existing gun laws because Heller did not explain why some laws seeming to restrict the Second Amendment right are presumptively lawful. (24) Heller's doctrinal progeny, McDonald v. City of Chicago, (25) declared the Second Amendment applicable to the states, but did not substantially change or clarify Heller's meaning.

    In Heller, the Court appeared to foreclose most, if not all, of the familiar standards of review, resulting in substantial disagreement among the lower courts as to the appropriate evaluative mechanism for constitutional challenges to gun laws. (26) Heller used a limited holding in a fairly unique factual circumstance to illustrate a broad constitutional theory. (27) Hence, the actual holding in Heller is fairly limited.

    1. The Factual Background and Opinions

      Heller and McDonald were part of a carefully designed legal strategy formulated by conservative activists who wanted to overturn the prevailing "militia" view of the Second Amendment. (28) Consequently, the issues addressed in Heller and McDonald were intentionally limited. (29) Dick Heller was a special police officer authorized to carry a gun as part of his job, but who was refused registration to keep one of his handguns at home. (30) At the time, District of Columbia law banned handguns and severely limited an individual's ability to possess rifles and shotguns (31)--a de facto ban on all guns in the District. (32) Importantly, District law did not include an exception for the use of guns for self-defense. (33) This regulatory scheme was one of the most restrictive in the country, and was considered an outlier even before the litigation in Heller. (34) Focusing on the restriction of the possession of handguns in the privacy of one's own home for the purposes of self-defense, the Court invalidated the District's law as violating the "inherent of self-defense ... central to the Second Amendment right." (35)

      McDonald was filed within hours of the Court's decision in Heller in a successful attempt to extend the reasoning in Heller to the states. (36) It was the next step in the lawyers' "incremental" strategy in changing the legal understanding of the Second Amendment, and challenged Chicago's gun ban, considered to be almost as restrictive as the District's. (37) The petitioners in McDonald were similar to the plaintiff in Heller (38) in that they wanted to keep handguns in their homes for self-defense purposes. (39) Chicago's gun laws were nearly as strict as the District's and effectively prohibited the possession of handguns within the city limits. (40) The question in McDonald had less to do with the Second Amendment than with the "selective incorporation" doctrine, (41) specifically whether the Second Amendment was incorporated by the Fourteenth Amendment's Due Process Clause. (42) A plurality of the Court agreed that the Second Amendment is a fundamental right and therefore incorporated by the Fourteenth Amendment's Due Process Clause, making it applicable to the states. (43) Thus, McDonald stands for the proposition that state judges must also address the implications of the Heller decision. (44)

    2. The "Laundry List" and Its Hidden Instructions

      Heller declared several gun laws "presumptively lawful," (45) though the majority did not explain why. (46) The list of these presumptively lawful regulations seems to explicitly exempt several types of regulation from the need for Second Amendment scrutiny by the lower courts:

      [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (47) The opinion also limits the individual fight to bear arms to possessing those weapons that were "in common use at the time" of the Second Amendment's adoption. (48) In subsequent litigation, these limitations have become extremely important, as there have been myriad challenges to criminal gun possession laws on Second Amendment grounds. (49)

      Perhaps the biggest doctrinal complaint about the Heller decision has been the Court's conscious determination not to define the standard of review for judges evaluating gun control measures in light of the new understanding of the Second Amendment. (50) The Heller Court did establish what would not be acceptable ways for judges to examine laws implicating the Second Amendment. (51) It rejected both "rational basis" (52) scrutiny and the kind of interest-balancing expressed in Justice Breyer's Heller dissent explicitly, (53) and rejected traditional "strict scrutiny" (54) implicitly. (55) The Court declared the Second Amendment to be, like the First Amendment, the product of interest-balancing--the Framers weighed the threat to public safety posed by guns against the individual's need for self-defense and declared their preference in the text of the Second Amendment. (56) Although the Court did not explicitly reject intermediate scrutiny, in rejecting interest-balancing, it implicitly cast doubt on the way intermediate scrutiny functions in practice. (57)

      Consequently, the Heller Court left lower court judges with an explicit command to protect the individual right to bear arms, no explicit method to use in doing so, and most of the traditional methods foreclosed. (58) Not surprisingly, this lack of clear direction, which was left unresolved by McDonald, has caused the lower courts to develop their own, sometimes contradictory, standards. (59) The next Part will explain how lower courts are addressing these laws, focusing on criminal laws that are on the margins of the right to bear arms.


    Heller's list of presumptively lawful measures (60) addresses several of the...

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