Second Amendment: the Dozen Yardsticks for Measuring Its Scope

• Jurisdiction: United States,Federal
• Author: By William Slomanson
• Citation: Vol. 34 No. 1
• Publication year: 2021

Second Amendment: The Dozen Yardsticks for Measuring its Scope

By William Slomanson

William Slomanson is an instructor at the University of San Diego's University of the Third Age, San Diego State University's Osher Institute, and professor emeritus, Thomas Jefferson School of Law. He can be reached at bills@tjsl.edu.

The Problem

There will be 12 functioning, proposed, or allegedly rebuffed benchmarks to choose from, when the U.S. Supreme Court finally drafts its Second Amendment blueprint. The Court's 2008 precedent confirmed the fundamental nature of the constitutional right to keep guns in the home for self-defense. (District of Columbia v. Heller (2008) 554 U.S. 570 (Heller).) The Court's 2010 McDonald decision extended Heller to all cities and states — via the selective incorporation of another Bill of Rights provision into the laws of all cities and states. (McDonald v. City of Chicago (2010) 561 U.S. 742 (McDonald).) But neither Heller nor McDonald embedded a template for future legal challenges to the nation's gun regulations.

Prior to its sesquicentennial, no provision of the Bill of Rights was applicable to the States — until so suggested in the most famous footnote in Supreme Court history. (U.S. v. Carolene Products Co. (1938) 304 U.S. 144, 152, fn. 4 [the predicate for the ensuing flurry of selective incorporation cases].) During that lengthy pre-incorporation period, "[m]ost if not all of the States ha[d] adopted provisions touching [upon] the right to keep and bear arms." (U.S. v. Miller (1939) 307 U.S. 174, 182.)

Heller thus triggered "legal challenges to [other] gun regulation[s] throughout the Nation. Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation without clear standards for resolving those challenges. And litigation over the course of many years ... threatens to leave cities without effective protection against gun violence and accidents during that time." (Heller, supra, 554 U.S. at p. 718 (Breyer, J., dissenting).) Another Justice later added that "[h]aving unleashed in Heller a tsunami of legal uncertainty ... and now on the cusp of imposing a national rule on the States ... for the first time in United States history, the Court could at least moderate the confusion, upheaval, and burden on the States by adopting a rule that is clearly and tightly bounded in scope." (McDonald, supra, 561 U.S. at p. 887 (Stevens, J., dissenting).)

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Lower courts have endured the ensuing dilemma, perhaps best articulated as follows: "This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. ... If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens.... But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy." (Heller v. District of Columbia (D.C. Cir. 2011) 670 F.3d 1244, 1295-1296 (Kavanaugh, J., dissenting on remand) (Heller II).)

The Supreme Court has nevertheless refused to determine any of the interim Second Amendment decisions from state and federal courts. That resistance spawned claims that the Court is missing in action regarding gun rights. Justices Clarence Thomas and Neil Gorsuch, for example, forcefully dissented from the Court's refusals to hear such cases in the decade since the Heller-McDonald doublet. They thus characterized the Second Amendment as a "disfavored right" and "this court's constitutional orphan." (Peruta v. California (2017) 137 S.Ct. 1995, 1999 (both dissenting from the denial of...