Second Amendment Federalism.

• Author: Erickson, Brian

Introduction I. Self-Defense as the Core of the Second Amendment: Theory and Consequences A. The Two-Step Approach 732 B. "Core" Protections in Textually Analogous Constitutional Phrases 1. First Amendment Assembly and Petition Clause analogs 2. Fourth Amendment Search and Seizure Clause analogs C. Self-Defense as the Core of the Second Amendment Right in Heller II. Constructing Self-Defense Law A. Self-Defense as a Product of State Law 1. State law and the construction of self-defense 2. Countering natural-law theory in Heller a. State v. Reid b. State v. Shoultz c. Bliss v. Commonwealth B. Federal Courts and Self-Defense Law III. Applying Second Amendment Federalism A. Restrictions on Public Carry B. Bans on Dangerous and Unusual Weapons C. Prohibitions on Possession by Domestic-Violence Misdemeanants and Others with Criminal Records Conclusion Introduction

In the decade since District of Columbia v. Heller, the paradigm-shifting 2008 Supreme Court case affirming the right of individuals to keep handguns in the home for the purpose of self-defense, (1) lower courts have struggled to reconcile the case's broad conception of the Second Amendment with longstanding restrictions on the keeping and bearing of firearms. Heller itself provided--without explanation--that the opinion "should [not] 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." (2) This list of regulations, which the Court called "presumptively lawful" and "not ... exhaustive," (3) has unsurprisingly become the go-to citation for gun-control advocates. (4)

But even those advocates have struggled to articulate a principled understanding of what makes a restriction lawful. One might be tempted to read into the Court's characterization of the presumptively lawful restrictions as "longstanding," (5) but this is odd, given that every one of the regulations the Court listed were nineteenth- or twentieth-century inventions. (6) Some scholars have argued that the Court may have listed the restrictions in order to give lower courts guidance as to the proper standard of scrutiny for future cases (7)--a guideline that Heller did not explicitly provide. (8) Pragmatic readers suggest that the list of permissible restrictions lacks internal coherence altogether and was added simply to secure a fifth vote from Justice Kennedy. (9) Whatever its origins, the list has earned attention from courts and scholars alike, if only because it offers a semblance of guidance for future cases.

Fixation on this list and other dicta in Heller has come at a cost. In trying to extract standards from Heller's limiting language, scholars and advocates have not sufficiently examined the case's macro-level reasoning, including its stunning declaration that self-defense is the "central component" of the Second Amendment right. (10) Heller, in other words, does not stand for the proposition that owning a handgun is an end in itself. Rather, it suggests that the Second Amendment protects the right to keep and bear arms in service of a separate, more foundational right to self-defense.

Building on an emergent literature that looks to the law of self-defense for guidance on the scope of the Second Amendment right, (11) this Note examines how the self-defense right has been construed (and reconstrued) over the course of U.S. legal history. In light of dynamic changes to the law of self-defense over time and across jurisdictions, federal courts have largely deferred to legislative judgments on the scope of the self-defense right, framing it as a matter of criminal (and thus state) law. Given this tradition, courts ought to grant states deference in reviewing laws that regulate the instrumentalities of self-defense (among other things, firearms), just as they would for laws that modify the right itself.

The Note proceeds in three Parts. Part I looks to Hellers repeated declarations that self-defense is the "core" protection of the Second Amendment and examines the significance of those statements. It argues that framing self-defense as the core invites a rigorous Second Amendment analysis that takes into account interest-balancing, empirical analysis, and other modes of reasoning generally assumed to be foreclosed by Heller. Part II examines the unique development of self-defense law in the United States, observing that the doctrine has evolved over time and across jurisdictions. It focuses on how courts have reviewed state legislative and executive action that has shaped the substance and procedure of self-defense as a legal right, noting that courts have generally deferred to state-led developments in this area of law even when they deviate from common law tradition. Part III explains how the tradition of self-defense as a state-defined right may provide a basis for a jurisprudential approach that I term "Second Amendment Federalism." The Part then applies Second Amendment Federalism to three key areas of controversy: restrictions on public carry, bans on dangerous and unusual weapons, and prohibitions on possession by domestic-violence misdemeanants and others with criminal records. A fundamental contention of the Note is that Second Amendment Federalism might ameliorate the frustration that many--including several current Supreme Court Justices--have expressed with the lack of clarity in Second Amendment doctrine.

1. Self-Defense as the Core of the Second Amendment: Theory and Consequences

   In parsing Heller, lower courts have attempted to give clarity to the scope of the Second Amendment, distinguishing protections at the core of the Second Amendment right from those that might yield to other public-policy concerns. At base, Heller held that a Washington, D.C., ordinance prohibiting the possession of handguns in individuals' homes is unconstitutional. (12) The majority reached that conclusion after identifying the Amendment's "core lawful purpose of self-defense." (13) Since "the American people have considered the handgun to be the quintessential self-defense weapon," it is constitutionally protected. (14)

   Heller stopped short, however, of explaining what to make of this newly articulated "core" purpose of the Second Amendment. (15) As Justice Stevens noted in dissent, the majority "[left] for future cases the formidable task of defining the scope of permissible regulations." (16) Now, with nearly thirteen years of case law available, we are able to see what courts have done. In general, courts have applied a consistent framework to Second Amendment challenges but have reached inconsistent outcomes. The purpose of this Part is to return to the basic dictates of Heller to determine what its articulation of the Second Amendment's "core purpose" means for current Second Amendment scholars and practitioners.

   This Part proceeds in three Subparts. Subpart A explains the current two-step test that most courts of appeals apply when considering Second Amendment challenges and discusses critiques of that test by four current Justices of the Supreme Court. Subpart B examines how similar two-step approaches have been applied in the context of other constitutional rights. It specifically addresses the Second Amendment's two closest textual analogs: the First Amendment's Assembly and Petition Clause and the Fourth Amendment's Search and Seizure Clause. Subpart C returns to Heller's assertion that self-defense is the core protection of the Second Amendment, drawing on Eric Ruben's 2020 article An Unstable Core: Self-Defense and the Second Amendment--the first major piece of scholarship to propose incorporating principles from self-defense law into Second Amendment doctrine. (17) Subpart C concludes by observing that variances across time and across jurisdictions make it difficult to extract universal principles from self-defense law, complicating attempts to conduct Second Amendment analysis in accordance with such principles.

   1. The Two-Step Approach

      Rumblings of discontent in Second Amendment law came into sharp focus in April 2020, when the Supreme Court announced (and didn't announce) its decision in New York State Rifle & Pistol Ass'n, Inc. v. City of New York (NYSRPA). (18) The Court's first fully briefed Second Amendment case in a decade, NYSRPA dealt with a New York City regulation that prohibited the public carry and transport of firearms to anywhere but one of seven firing ranges in the city. (19) The City succeeded before the Second Circuit but, fearing reversal, repealed its regulation shortly after the Supreme Court granted certiorari, (20) leading a six-justice majority to declare the case moot. (21)

      Justice Alito, joined by Justices Thomas and Gorsuch, issued a scathing dissent, arguing both that the matter was not moot and that the Second Amendment challenge was "not a close question." (22) The dissenters reasoned that the right to use a firearm for self-defense in the home must also include the right to train with that firearm "in order to gain and maintain the skill necessary to use it responsibly." (23) More crucially, the dissenters noted that the regulation had no analog in history--"neither the City, the courts below, nor any of the many amici supporting the City [had] shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice"--and the city's proffered public-safety justifications were unfounded. (24) The dissenters concluded by quipping, "[w]e are told that the [Second Circuit's] mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern." (25)

      The Second Circuit's NYSRPA opinion was indeed representative of a major trend. After Heller, the courts of appeals have...