The Hidden Second Amendment Framework within District of Columbia V. Heller

COMMENT A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. U.S. CONST, amend. II I. INTRODUCTION The Second Amendment has always been shrouded in constitutional mystery. For most of our history, this mystery has centered on whether the Second Amendment protects an individual or collective right to keep and bear arms.1 The Supreme Court had not addressed the issue in any meaningful fashion,2 and lower courts continuously struggled with it,3 leading legal commentators to produce countless books,4 articles,5 and symposia6 on the topic. The Court resolved this central Second Amendment question in June 2008 when it decided District of Columbia v. Heller.1 In Heller, the Court squarely confronted the meaning of the Second Amendment and held that it protected an individual right to keep and bear a firearm for lawful purposes, such as self-defense in the home.8 Yet, in the same breath, the Court was careful to limit explicitly its ruling by holding that the individual right was not absolute.9 Although the Heller Court provided a non-exhaustive list of certain longstanding firearms regulations that did not run afoul of the Second Amendment,10 it left the issue of how to review Second Amendment claims for another day.11 Thus, in resolving the question of whether the Second Amendment protects an individual right, the Court created a new mystery: How should courts review claims under the Second Amendment? The answer to this question is vital. In the year following Heller, lower federal courts have been deluged with Second Amendment claims, yet they have little explicit guidance from the opinion as to how to rule on these challenges.12 Over time, the Court may provide further guidance on the applicable analytical framework. If the past is precedent in the Second Amendment context, lower courts may wait a long time for a decisive Supreme Court ruling. Meanwhile, the cases will come faster than ever, leading Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit to state that the post-Heller federal docket threaten[s] to suck the courts into a quagmire.13 Indeed, confusion already reigns in the lower courts as to how to review Second Amendment claims. In the wake of Heller, lower courts have applied strict scrutiny,14 intermediate scrutiny,15 and rational basis review16 in analyzing Second Amendment challenges. Perhaps the quagmire feared by Judge Wilkinson already exists. This Comment argues that courts have more guidance than they may believe. Although Justice Scalia, the author of the majority opinion in Heller, refused to set a standard of review, his opinion nevertheless yields numerous clues hinting at the applicable analytical framework.17 Accordingly, this Comment articulates the Second Amendment framework based on a careful analysis of the Heller opinion itself. In essence, it offers a prediction for the standard of review that the Court has in mind or will embrace.18 It does not offer a critique - positive or negative - ?? Heller,19 nor does it argue, as a matter of policy, which particular standard of review should be applied to claims under the Second Amendment.20 Rather, this Comment contends that lower courts should adopt this framework, grounded in the language of the opinion, in order to avoid being sucked into the Second Amendment quagmire. As a preliminary matter, this Comment assumes three preliminary, but no less important, issues: first, that the Second Amendment will be incorporated as against the states;21 second, that the Heller majority will remain constant; and third, and most significantly, that the Supreme Court will rely upon its decision in Heller - and the specific language it used in that opinion - when it eventually addresses the issue of a Second Amendment standard of review. Part II provides a background of Second Amendment jurisprudence. …