The continuing battle over the Second Amendment.

• Author: Rostron, Allen
• Position: The Right to Keep and Bear Arms in the 21st Century

1. INTRODUCTION

   The Supreme Court's decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) settled several important controversies concerning the Second Amendment right to keep and bear arms. (3) They also left many vital questions unanswered. Struggling with these unresolved issues, lower courts have produced a large and continually growing volume of decisions about the Second Amendment in recent years.

   In an article published in 2012, I described a surprising trend in the lower court decisions. (4) "Justice Antonin Scalia's majority opinion in Heller heavily emphasized historical investigation of the original meaning and traditional understandings of the right to keep and bear arms." (5) The Heller majority "also viewed the right in categorical terms, suggesting that courts should try to clearly demarcate the types of guns, people, and activities protected" by the

   Second Amendment. (6) While attempting to follow the Supreme Court's lead, the lower courts nevertheless drifted away from such a rigidly historical and categorical approach. They instead favored a more flexible, pragmatic sort of analysis, enabling them to weigh the burdens imposed by legal limits on firearms against the public policy concerns motivating such restrictions. (7) The emerging consensus in the lower courts was that constitutional challenges to gun laws should be evaluated under an intermediate scrutiny approach that was "highly deferential to legislative determinations and [resulted in] all but the most drastic restrictions on guns being upheld." (8) Historical analysis had "taken a backseat" to consideration of contemporary public policy implications. (9)

   I argued that this result was both inevitable and commendable. It was an unavoidable result of the fact that "historical inquiries are extremely difficult and do not produce determinate answers to the types of detailed questions" raised by the array of constitutional challenges being brought against a wide variety of gun laws. (10) The courts' cautious, sensible approach to these challenges deserved praise for giving appropriate deference to legislative decisions, respecting the wide variation in attitudes toward and experience with guns in different parts of the country, and being consistent with the American public's general consensus that the right to keep and bear arms should not preclude strong legal regulation of the possession and use of guns. (11) Moreover, the lower courts' approach had "the simple virtue of being candid," because it allowed judges to be honest and open about the policy calculus underlying their decisions, rather than pretending that historical analysis alone dictated the outcome of cases. (12)

   Gun rights advocates essentially agreed with that assessment of the lower courts' approach, although they strongly condemned the phenomenon rather than praising it. (13) They have begged the Supreme Court to take another step into the Second Amendment fray in order to provide additional guidance to "rectify the lower courts' widespread, determined resistance to enforcing the enumerated, fundamental constitutional right to keep and bear arms." (14) To date, they have been unsuccessful, as the Supreme Court has denied certiorari petitions in a string of cases concerning the right to keep and bear arms. (15)

   This Article provides an updated look at the ongoing battle over the Second Amendment in the lower courts. To some extent, the situation is much the same as it was when I last surveyed this field in 2012. (16) Judges have generally continued to apply a form of intermediate scrutiny that is very deferential to reasonable legislative determinations about what restrictions on guns address legitimate public safety concerns. (17) At the same time, they have moved toward integrating more historical analysis into their approach to Second Amendment issues. (18) History often will not provide any clear answers to modern Second Amendment questions, but courts are increasingly making efforts to glean whatever insight may be drawn from historical reflection. Meanwhile, a minority view has arisen to challenge the general consensus in the lower courts, with a small number of judges rejecting the use of any sort of intermediate scrutiny or other means-ends analysis and insisting that Second Amendment questions instead must be answered on the basis of nothing other than constitutional text, history, and tradition. (19) These judges essentially demand that historical perspectives must dominate the interpretation and application of the Second Amendment, rather than being just elements of a broader and more complex methodology.

   Two clear alternatives have thus emerged. Most judges have embraced a model of Second Amendment analysis that gives due consideration to historical evidence but sensibly recognizes that looking at the distant past neither can nor should entirely control today's judicial decision making about the right to keep and bear arms. A small band of insurgents argues otherwise, calling for a rigidly and purely backward looking approach. The struggle between these two camps is far from over, but already the cases have begun to reveal the shortcomings of attempts to decide Second Amendment issues using an exclusively historical approach. (20)

   Part II of this Article describes the standard analysis that courts have applied to Second Amendment issues in recent years, a two-step process that emphasizes historical evidence in determining the scope of the right to keep and bear arms but then employs an intermediate scrutiny analysis to determine the strength and effect of that right. Part III examines the views of a small minority of judges who insist that text, history, and tradition are the only legitimate elements of Second Amendment analysis. Part IV argues that the standard approach to the Second Amendment that has emerged in lower court decisions is a sound methodology that sensibly takes account of historical considerations where they provide some insight into the Second Amendment's meaning but does not pretend that history alone can provide answers to the complex array of issues facing courts in Second Amendment cases today.

2. THE STANDARD TWO-STEP MODEL OF SECOND AMENDMENT ANALYSIS

   In the 1990s, scholars began to talk about the emergence of a "Standard Model" of Second Amendment interpretation. (21) They meant that a large body of scholarship had taken the view that the Second Amendment provides an individual right to possess and use guns for purposes beyond participation in organized militia activities. (22) The Supreme Court eventually embraced that Standard Model in Heller, ruling that the Second Amendment does indeed extend to private activities like having a gun for protection of one's home and family against criminals. (23)

   The resolution of that important threshold question about the reach of the Second Amendment led to a proliferation of constitutional challenges and new questions for courts to answer. In particular, while the Supreme Court's decisions in Heller and McDonald provided some clarification of the scope of Second Amendment rights, they offered little clear guidance about the strength of those rights. (24) Would the newly reinvigorated Second Amendment radically curtail governments' ability to regulate guns, or would it result in the invalidation of only the strictest legal constraints on guns?

   As courts around the country have struggled to answer that question, a new Standard Model has begun to emerge in Second Amendment jurisprudence. Most judges have concluded that the Second Amendment requires a two-step analysis. (25)

   The first stage of the analysis considers whether the challenged law imposes a burden on conduct protected by the Second Amendment. (26) In other words, this step requires a court to decide whether the case even falls within the ambit of the Second Amendment. Courts have concluded that this analysis should be a "historical inquiry" that "seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification." (27) Courts thus must try to assess whether the challenged law restricts or regulates conduct that Americans in

   1791 regarded as being part of the right to keep and bear arms. (28)

   If the historical inquiry leads to the conclusion that the challenged law's effects fall outside the original scope of the right to keep and bear arms, that resolves the matter. The court will reject the claim that the law violates the Second Amendment. (29) But if the historical analysis instead suggests that the law burdens conduct that was part of the right to keep and bear arms in 1791 (or if the historical analysis is inconclusive), the court must proceed to the second part of the two-step approach. (30) Rather than looking to history, the second step of the analysis evaluates the challenged law from the perspective of contemporary public policy. (31) This entails the application of some form of means-end scrutiny, which essentially amounts to asking whether the government shows a sufficient justification for the challenged law. (32)

   The Supreme Court has not specified a particular level of scrutiny or other means-ends test that should govern Second Amendment issues, although Heller did declare that the right must be protected by something more demanding than mere rational basis scrutiny. (33) Courts therefore tend to regard the matter as boiling down to a choice between intermediate scrutiny and strict scrutiny, and most opt for the former. (34) Intermediate scrutiny could take many forms, (35) but most courts have applied a moderate version of it that merely requires the government to show a reasonable fit between the challenged law and some substantial government objective. (36) Courts emphasize that this does not mean the challenged law must be the least restrictive means of achieving the objective. (37) They also suggest that the means-ends...