Raising Heller

Constitutional Scrutiny in a New Age of Second Amendment Rights

The Second Amendment has only recently grabbed the Supreme Court’s full attention. In District of Columbia v. Heller, the Supreme Court recognized for the first time that the Second Amendment guarantees an individual’s right to keep firearms for self-defense. Two years later, in McDonald v. City of Chicago, this right was incorporated against the states as one of the fundamental liberties protected by the Fourteenth Amendment. The Court in Heller, however, did not unveil the applicable tier of scrutiny, and, thus, confusion remains among lower courts as to what standard of review is appropriate in Second Amendment cases. Since Heller and McDonald, no consensus on this issue has been reached. Most circuits have applied intermediate scrutiny, while strict scrutiny has been tried. Some have applied something else entirely. In struggling with this issue, courts have also restricted the Heller holding beyond what the opinion could reasonably warrant. Heller did not explicitly demand the application of a certain tier of scrutiny, but courts have seized upon other language from the opinion to justify severely restricting the “core” of the Second Amendment right itself. This has made it easier to uphold gun regulations regardless of the tier of scrutiny applied. This Note analyzes the split since Heller and ultimately suggests that a tier of scrutiny analysis is not necessary at all. Instead, this Note recommends an approach that appropriately flows from the Heller opinion itself—an analysis that relies on text, history, and tradition.

The full text of this Note is available to download as a PDF.