Replacing the Second Amendment is the
Only Way to Preserve the Individual Right
to Self-Defense While Reducing Gun
Violence
Kevin T. Crane, Jr.*
ABSTRACT
If you want something done right you have to do it yourself We, the American people, cannot rely on our legislators or our courts to fix our broken
gun policy. For one thing, tasking our elected officials andjurists with this
is as ill-advised as hiring a group of teenagers to remodel your house while
you are away for the summer. You can bet your last dollar that when you
return you're going to be in a worse spot than when you left. Maybe the
legislatures and the courts could be effective if we were talking about a
quick fix or small adjustment to solve this problem. However, American
gun policy doesn't need a quick fix or a small adjustment; it needs a total
reconstruction. We no longer have the luxury of sitting idly while one
group debates the other over how exactly an eighteenth century text governs our twenty-first century problems. If the Second Amendment is getting
in the way of securing our free state, then it's time for a "new Second
Amendment."
I. INTRODUCTION
In the right hands, the use of guns can prevent tragedy, and it is natural
for law-abiding individuals to want access to tools of self-defense that efficiently protect against the harm threatened.' A lethal threat justifies a lethal
*
Member of the Bar of the Commonwealth of Massachusetts; B.A., 2008, University of Massachusetts, Amherst; J.D. 2013, New England Law I Boston. The author thanks
the editors of the New England Journalon Criminal and Civil Confinement for their assistance with this article. For B.
1. See Texas Deputy Stops Theater Shooter, POLICE MAG. (Dec. 16, 2012),
http://www.policemag.com/channel/patrol/news/2012/12/16/texas-deputy-stops-theatershooter.aspx.
427
CRIMINAL AND CIVIL CONFINEMENT
428
[Vol. 40:427
response. 2 In the wrong hands, the use of guns can cause tragic results. 3
Whether gun regulation is an effective means of diminishing gun-related
tragedy is a recurrent debate in America. 4 To this end, laws criminalize
some activity related to guns that society deems undesirable, including possession of guns by certain people, 5 possession of certain types of guns,6
possession of guns in certain places, and how guns come to be in the possession of individuals. 8 In other words, typical gun laws can be categorized
as who, what, where, and how-type regulations. 9 The penalties for persons
convicted of violating these gun laws are harsh.' 0
Unfortunately, the empirical evidence of the positive and negative effects of gun regulation is inconclusive, giving neither side of the debate a
clear advantage." Where the evidence in favor of more gun regulation
roughly equates the evidence in favor of less gun regulation, policy makers
face tough decisions that are heavily influenced by ideology, life history,
and culture mores. 12 Most importantly, any discussion for or against laws
regulating the sale, ownership, or possession of guns must begin with the
relationship between the proposed law and the Second Amendment,1 3 as
defined by the United States Supreme Court in Districtof Columbia v. Hel-
2.
See WHITLEY R. P. KAUFMAN, JUSTIFIED KILLING: THE PARADOX OF SELF-DEFENSE
150 (2009).
3. See Matt Gutman, Trayvon Martin Neighborhood Watch Shooting: 911 Tapes
(Mar.
16,
2012),
From
Room,
ABC
NEWS
Send
Mom
Crying
http://abcnews.go.com/US/treyvon-martin-neighborhood-watch-shooting-91 1-tapessend/story?id=15937881#.UWTCD5NJOAg.
4.
See, e.g., MARK TUSHNET, OUT OF RANGE 76 (2007) (critiquing conclusions drawn
by parties from either side of the debate on analysis that assumes too much or fails to account for result-changing variables).
5.
E.g., 18 U.S.C. § 922(g) (2013) (prohibiting convicted felons, among others, from
possessing firearms).
6.
E.g., id. § 922(o) (prohibiting possession of a machine gun).
7.
E.g., id. § 922(q)(2)(A) (prohibiting possession of a firearm in a school zone).
8. E.g., id. § 922(a)(1)-(2) (prohibiting anyone but a licensed manufacturer, licensed
importer, or licensed dealer, among others, from engaging in the business of manufacturing,
dealing, or importing firearms).
9.
See Eugene Volokh, Implementing the Right to Keep and Bear Arms for SelfDefense: An Analytical Frameworkand a Research Agenda, 56 UCLA L. REV. 1443, 14751534 (2009).
10.
E.g., 18 U.S.C. § 924(a) (proscribing prison terms, including five and ten year
sentences, for violations of different provisions under said chapter).
11.
BRIAN DOHERTY, GUN CONTROL ON TRIAL: INSIDE THE SUPREME COURT BATTLE
OVER THE SECOND AMENDMENT 93 (2008); TUSHNET, supra note 4, at 101.
12.
TUSHNET, supra note 4, at 101.
13.
U.S. CONST. amend. I ("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.").
REPLACING THE SECOND AMENDMENT
2014]
429
ler.14
The recurring American gun debate comes and goes with the ebb and
flow of violent time periods.15 Over the past several years, there have been
a number of mass shootings, 16 culminating in the massacre at Sandy Hook
Elementary School on December 14, 2012, that have caused Americans to
reexamine their gun policy.17 President Barack Obama has committed to a
change in American gun policy,18 and Senator Dianne Feinstein has submitted the Assault Weapons Ban of 2013 for consideration." This Note
proceeds under the presumption that Americans want American gun policy
to be more efficient at reducing the occurrence of gun tragedies while protecting their right to defend themselves with arms under the Second
Amendment.
In order to succeed, the possibility of creating a new gun policy through
innovative approaches to gun legislation under the Heller test must be assessed. Through an analysis of the Federal Circuit Courts of Appeals' application of the Heller test, this Note will argue that the current constitutional framework will obstruct potentially effective gun policy reform, and
to reach a breakthrough the American people should repeal and replace the
Second Amendment.
14.
Dist. of Columbia v. Heller, 554 U.S. 570, 592 (2008) ("Putting all these textual
elements together, we find that they guarantee the individual right to possess and carry
weapons in case of confrontation.").
15.
See DOHERTY, supra note 11, at 43-50 (describing major gun reforms, including
the National Firearms Act of 1934, which coincided with the rise of organized crime violence, and the Assault Weapons Ban of 1994, which coincided with the crack-cocaine epidemic); see also ANDREW CARLSON, THE ANTIQUATED RIGHT: AN ARGUMENT FOR THE
REPEAL OF THE SECOND AMENDMENT 67-69 (2002).
16.
Mark Follman et al., US Mass Shootings, 1982-2012: Data From Mother Jones'
Investigation,
MOTHER
JONES
(Dec.
28,
2012),
http://www.motherjones.com/politics/2012/12/mass-shootings-mother-jones-full-data. Since
1982, sixty-two shootings of five victims or more have occurred in the United States. Id.
Seven shootings occurred in 2012. Id. Thirty mass shootings have occurred within the last
ten years, including Sandy Hook (28 fatalities, 2 injured); Aurora, Colorado (12, 58); Virginia Tech (33, 23); Fort Hood (13, 30); Tucson, Arizona (6, 13); Northern Illinois University (6, 21); and Binghamton (14, 4). Id. Columbine High School (15, 24) occurred in 1999.
Id. "Mass shooting" is not defined on the website but all the shootings for which data is provided resulted in five or more victims. Id.
17.
Id.
18.
Reid J. Epstein & Jennifer Epstein, Obama Guns Plan Meets Fast Resistance,
PoLiTico (Jan. 16, 2013), http://www.politico.com/story/2013/01/obama-gun-control-planis-announced-86280.html.
19.
Stopping
the
Spread of Deadly Assault
Weapons,
http://www.feinstein.senate.gov/public/index.cfm/assault-weapons
2013).
DIANNE
FEINSTEIN,
(last visited Mar. 27,
430
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
The next two parts of this Note should interest both gun rights proponents and gun control proponents who wish to learn about the recent developments in Second Amendment jurisprudence. In Part II, this Note will
provide the meaning of the Second Amendment as interpreted by Heller.
Part 111 will describe the test applied by the Courts of Appeals and analyze
its critical flaws. This Part will conclude that the current legal framework
must change for gun control proponents and gun rights proponents to realize a better national gun policy. Part IV will offer a framework for a "new
Second Amendment" that will preserve the values codified in the individual right to use firearms for self-defense, including the choice to own weapons such as handguns, long guns, and semi-automatics toward that purpose.
However, in order to allow for the states to effectively diminish the occurrence of individuals inflicting harm on themselves and others, this framework will propose a ban on the commercial sale of ammunition while preserving the right to sell ammunition exclusively for the states. Part V will
conclude by summarizing the arguments presented.
II. THE MEANING OF THE SECOND AMENDMENT
On June 26, 2008, the Supreme Court issued an opinion, which, for the
first time in the history of the Court, undertook a comprehensive analysis of
the Second Amendment's meaning. 20 Prior to the Supreme Court's decision in Heller, the District of Columbia banned the registration of handguns-effectively makinp it impossible to keep a handgun in one's home
for any lawful purpose.2 Dick Heller, a special police officer, applied for
and was denied a registration certificate for a handgun he wanted to keep at
home. 22 Thereafter, Heller filed suit asking for the District to be enjoined
from enforcing its handgun ban. 23 After dismissal from Federal District
Court, the Court of Appeals reversed, holding that "the Second Amendment protects an individual right to possess firearms, and that the city's total ban on handguns . .. violated that right." 24
The District of Columbia argued that the Second Amendment "protects
only the right to possess and carry a firearm in connection with militia ser-
Andrew Gould, The Hidden Second Amendment Framework Within District of
20.
Columbia v. Heller, 62 VAND. L. REv. 1535, 1536, 1540-43 (2009) (referring to Heller:
"[t]he Supreme Court had not addressed the issue in any meaningful fashion...."); see
Dist. of Columbia v. Heller, 554 U.S. 570, 619-26 (2008) (analyzing Court precedent on the
Second Amendment-all of which were cursory examinations of the Amendment's meaning).
21.
Heller, 554 U.S. at 574-76.
22.
Id. at 575.
23.
Id.
24.
Id.
REPLACING THE SECOND AMENDMENT
2014]1
431
vice." 25 The respondents argued instead that the Second Amendment "protects an individual right to possess a firearm unconnected with service in
militias, and to use that firearm for traditionally lawful purposes, such as
self-defense within the home." 26 By a majority of five to four, the Court
held-after analyzing the text of the amendment, 27 the historical evidence, 2 8 and Court precedent 29-"that the District's ban on handgun possession in the home violate[d] the Second Amendment, as [did] its prohibition against rendering any lawful firearm in the home operable for the
purpose of immediate self-defense." 30 In so doing, the Court rejected the
theory that the Second Amendment only protected the right to keep and
bear arms in connection with service in a state militia.3 1 Rather, the Court
found that the right to keep and bear arms guaranteed a broader protection
for individuals to own and carry firearms for self-defense. 32
To support the individual right theory, the Court relied on textual analysis and historical evidence.33 Then, having found the pu oses of the right,
the Court proceeded to explain that the right is limited. From these parts
of the Court's opinion emerges the meaning of the Second Amendment.
A. Interpreting the Text: What Purposes Does the Right Serve?
A key component of the Court's textual analysis was its conclusion that
the prefatory clause-"A well regulated Militia, being necessary to the security of a free state"- does not limit the scope of the operative clause"the right of the people to keep and bear arms shall not be infringed."3 s Rather the prefatory clause was but one reason that the Founders enshrined
the pre-existing right to have arms for self-defense. 36 Accordingly, the
Court did not accept the District's argument that it was free to reasonably
regulate gun activity not related to militia activity.37 To the contrary, the
Founders adopted the Second Amendment for civic purposes, to have a
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
Id. at
Id.
Id. at
Id. at
Id. at
Id. at
Id. at
Id. at
Id.
Id. at
577.
35.
Id. at 577; see STEPHEN P. HALBROOK, THE FOUNDERS' SECOND AMENDMENT:
579-92.
592-619.
619-26.
635.
581-92 (discrediting arguments supported by Justice Stevens in his dissent).
592.
626.
ORIGINS OF THE RIGHT TO BEAR ARMs 332 (2008). But see Heller, 554 U.S. at 651 (Stevens,
J. dissenting); CARLSON, supra note 15, at 75-82.
36.
Heller, 554 U.S. at 599.
37.
Id. at 599-600.
432
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
trained citizenry capable of forcefully opposing tyranny or foreign invasion, and personal purposes, so the citizens may defend themselves in case
of confrontation.3 8 Having concluded that the Second Amendment protected the ownership and possession of arms for civic and personal purposes,
and that the District of Columbia's handgun ban conflicted with the latter,
the Court proceeded to analyze whether the law unconstitutionally infringed on the petitioners' Second Amendment Rights. 39 Before doing so,
the Court explained some limits to the Second Amendment. 40
B. The Public Understood the Pre-Existing Right to be Limited in
Scope
"Like most other rights, the right secured by the Second Amendment is
not unlimited."4 1 The Heller opinion described some guideposts for what
the future review of laws limiting Second Amendment rights should consist
of based on how the American people understood the pre-existing right. 42
The Court stated:
Although we do not undertake an exhaustive historical analysis of the
full scope of the Second Amendment, nothing in our opinion should 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.
We also recognize another important limitation . .. as we have explained, ... the sort of weapons protected were those in "common use
at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual
weapons." 4 3
Unlike the laws mentioned in the passage above, the District of Columbia's handgun ban prohibited "an entire class of 'arms"' in common use for
self-defense.4 The Court emphasized:
The prohibition extends, moreover, to the home, where the need for defense is most acute. Under any of the standards of scrutiny that we have
38.
Id.; see Michael P. O'Shea, The Right to Defensive Arms After District of Columbia v. Heller, 111 W. VA. L. REV. 349, 350-51 (2009).
39.
Heller, 554 U.S. at 628.
40. Id. at 626.
41.
Id.
42.
Id. at 626-28.
43.
Id. at 626-27 (citations omitted).
44.
Id. at 628.
2014]
REPLACING THE SECOND AMENDMENT
433
applied to enumerated constitutional rights, banning from the home "the
most preferred firearm in the nation to 'keep' and use for protection of
one's home and family" would fail constitutional muster. 45
Beyond federal or state laws 46 that completely prohibit handguns kept in
the home for self-defense, the Supreme Court has left the constitutionality
of other gun laws open. 47 Gun control proponents, gun rights proponents,
and the lower courts hearing these claims have only the Court's brief mention of limits to the scope of the right to guide their analysis. In his dissent,
Justice Breyer admonished the majority for not establishing which of the
familiar degrees of constitutional scrutiny should apply to the Second
Amendment, leaving the nation without clear guidance on an important
subject. 4 8 Justice Breyer would have held that Second Amendment review
requires an "interest balancing approach" that decides whether the burden
imposed on the individual's interest in self-defense was proportional to the
government's interest in public safety.49 The majority rejected the "interest
balancing approach," fearing it would empower the judiciary to contravene
the constitutional rights of the people. 50 Regardless, the majority stated,
such an analysis was unnecessary to resolve the controversy before it, for
"whatever else [the Second Amendment] leaves to future evaluation, it
surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 5 1 With that, the
Supreme Court held "that the District's ban on handgun possession in the
home violate[d] the Second Amendment." 52
Since Heller, a wave of Second Amendment claims has crashed down
upon the high courts of many states as well as nearly every Federal Circuit
Court of Appeals. From Heller, the lower courts have had to construct
some test for dealing with this "tsunami of uncertainty." 5 3 The above quot45.
Id.
46.
McDonald v. City of Chicago, 130 S. Ct. 3020, 3021 (2010) (holding a City of
Chicago ordinance-similar to the D.C. ban on handguns-was unconstitutional under Heller because the Second Amendment applies to the States).
47.
Heller, 554 U.S. at 635 ("Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt.... [T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when
those exceptions come before us.").
Id. at 655 (Breyer, J., dissenting).
48.
49.
Id.
See id. at 635 (majority opinion).
50.
51.
Id.
52.
Id.
Stacey L. Sobel, The Tsunami of Legal Uncertainty: What's a Court to Do Post53.
McDonald?, 21 CORNELL J.L. & PUB. POL'Y 489, 490 (2012) (quoting McDonald v. City of
Chicago, 130 S. Ct. 3020, 3105 (2010) (Stevens, J., dissenting)).
434
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
ed passages from the opinion have provided the most common source of
guidance.54
III. THE JUDICIAL AND ACADEMIC RESPONSES TO HELLER DEMONSTRATE
THAT THE SECOND AMENDMENT WILL PREVENT INNOVATIVE
LEGISLATION
The application of the Heller opinion to laws limiting conduct protected
by the Second Amendment will prevent the state and federal governments
from enacting innovative legislation aimed at reducing the tragedy experienced by victims of gun violence. This conclusion is evidenced by two
primary sources. To start, the First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Tenth, and D.C. Circuits 55 have all applied Heller, and their interpretations of Heller provide clear patterns on which to make predictions. 56
Secondly, numerous academic commentaries have expounded on the implications of Heller, and their insights support the argument that innovative
gun legislation will face significant (even prohibitive) constitutional hurdles in the future.5 7 In light of this analysis, this Part will conclude that the
Heller decision imposes irreconcilable demands upon innovative approaches to gun legislation.58
54.
See infra Part III.
55.
Hightower v. City of Bos., 693 F.3d 61, 73 (1st Cir. 2012); United States v. Rene
E., 583 F.3d 8, 12 (1st Cir. 2009); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 83-84
(2d Cir. 2012); United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010); United States
v. Barton, 633 F.3d 168, 170 (3d Cir. 2011); United States v. Masciandaro, 638 F.3d 458,
459-60 (4th Cir. 2010); NRA v. ATF, 700 F.3d 185, 188 (5th Cir. 2012); United States v.
Greeno, 679 F.2d 510, 517 (6th Cir. 2012); United States v. Skoien, 614 F.3d 638, 640 (7th
Cir. 2010) (en banc); Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012); United States v.
Reese, 627 F.3d 792, 799 (10th Cir. 2010); Heller v. Dist. of Columbia (HellerII), 670 F.3d
1244, 1249 (D.C. Cir. 2011).
56.
See infra Part III.B.
57.
See, e.g., Volokh, supra note 9, at 1475-1534; Patrick J. Charles, The Faces of the
Second Amendment Outside the Home: History Versus Ahistorical Standardsof Review, 60
CLEV. ST. L. REv. 1, 55 (2012); Gould, supra note 20, at 1536, 1540-43; O'Shea, supra note
38, 350-51; Darrell A. H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 YALE. L.J. 852, 855 (2013).
58.
Miller, supra note 57, at 852. Professor Miller provides a persuasive argument for
applying Seventh Amendment jurisprudence's "history test" to Second Amendment jurisprudence, given Heller's call for historical analysis. See generally id. Although his argument is highly persuasive, and could very well be the solution to bringing consistency to
Second Amendment jurisprudence if implemented, this Note argues that continuing to limit
gun regulation to historical analogues limits the people from dealing with its contemporary
problems.
2014]
REPLACING THE SECOND AMENDMENT
435
A. The Heller Test Created by the Courts of Appeals
Heller's holding provides that the government cannot completely ban
classes of arms commonly kept by the people in their homes for the purpose of self-defense. 59 Further, while declining to provide which level of
heightened scrutiny should apply to gun laws, Heller expressly ruled out
rational basis scrutiny. 60 Between these book ends, the Court provided little
guidance for the lower courts to rule on the constitutionality of gun laws.
With these considerations in mind, how have the circuit courts decided
the Second Amendment claims that have arisen since Heller? Eight of the
federal circuit courts have applied Heller and agreed that two issues must
be addressed to resolve Second Amendment claims. 6 1 Though Heller abstained from establishing the full scope of the Second Amendment, and did
not say what degree of scrutiny should be applied in future cases, Heller
proceeded immediately after mentioning "scope" in its opinion to list presumptively lawful "who, what, where, and how-type" regulations. 62 The
lower courts have implied that Heller described those regulations as presumptively lawful because they either: (1) fell outside the scope of the Second Amendment and were not subject to heightened scrutiny; or, (2) they
were within the Amendment's scope but passed a heightened form of scrutiny.63
The Fifth Circuit described the inquiry this way:
[T]he first step is to determine whether the challenged law impinges
upon a right protected by the Second Amendment-that is, whether the
law regulates conduct that falls within the scope of the Second Amendment's guarantee; the second step is to determine whether to apply intermediate or strict scrutiny to the law, and then to determine whether
the law survives the proper level of scrutiny.6
Though the test can be easily stated, the case law has shown that it is not
easily applied.6 5 Four benchmarks can be implied from Heller's list of
59.
Dist. of Columbia v. Heller, 554 U.S. 570, 635 (2008).
60.
Id. at 628 n.20.
61.
NRA v. ATF, 700 F.3d 185, 194 (5th Cir. 2012) ("[O]ur fellow courts of appeals
have filled the analytical vacuum. A two-step inquiry has emerged. . . ."); see, e.g., United
States v. Marzzarella, 614 F.3d 85, 89-95 (3d Cir. 2010); United States v. Masciandaro, 638
F.3d 458, 471 (4th Cir. 2010); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89, 93 (2d
Cir. 2012); Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012); United States v. Reese,
627 F.3d 792, 799 (10th Cir. 2010); Heller v. Dist. of Columbia (Heller 11), 670 F.3d 1244,
1249 (D.C. Cir. 2011).
62.
Heller, 554 U.S. at 626.
See cases cited supra note 61.
63.
NRA, 700 F.3d at 194 (citations omitted).
64.
See infra Part IH.B.
65.
436
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
"presumptively lawful regulations," 66 but many questions follow. First, the
"people" who may possess arms for lawful purposes does not include even
individual living in this country, ruling out felons and the mentally ill.
What about misdemeanants, minors, or adults ages eighteen to twenty?
Does the presumption apply to all mental illnesses, including anxiety disorders, depression, psychotic disorders, drug addiction, alcoholism, and personality disorders? Will the restrictions based on these conditions all be
subject to the same level of scrutiny, or will the level of scrutiny change
depending on how threatening a person with a particular condition is likely
to be to the public? What about the relatives, cohabitants, or neighbors of
these individuals? Could the probability that persons related to dangerous
individuals will be exploited for access to firearms affect their Second
Amendment rights?
Second, it is implied that arms may not be carried in any place an individual wishes to have them, since the Heller court provided that regulation
of "sensitive places" is presumptively lawful. 6 8 However, the term "sensitive places" was not defined in the opinion. 69 Could they include schools,
hospitals, government buildings, stadiums, theaters, restaurants, malls, gardens, or parks? Is the government restricted in regulating a sensitive place
itself, or may it prohibit weapons from a statutory area surrounding them?
Can the government prohibit the possession of firearms outside the home
completely? If not, are states required to objectively issue open or concealed carry licenses, or may they do so at their discretion?
Third, the Constitution does not protect the right to own or carry all
arms, as Heller presumed that uncommon or "dangerous and unusual"
weapons are fairly subject to regulation. 70 What guns are common? What
guns are "dangerous and unusual?" Can the government prohibit rocket
launchers, grenades, flame throwers, fully automatic weapons, semiautomatic weapons, large caliber rifles, hollow point bullets, or large capacity magazines?
Fourth, the Second Amendment does not prohibit all "conditions and
qualifications on the commercial sale of arms." 71 Does that imply that national registration systems, universal background checks for all transactions, or mandatory safety training are presumptively lawful? Could universal background checks require the applicant to complete an evaluation
for mental illness? What about the disclosure of all family members, co-
66.
67.
68.
69.
70.
71.
Heller, 554 U.S. at 627 n.26.
Id. at 626.
Id.
Id.
Id.
Id.
2014]
REPLACING THE SECOND AMENDMENT
437
habitants, and neighbors with known mental illnesses?
Until the Supreme Court says otherwise, the answers to these questions
will come from an analysis under the two-step Heller test, which has been
applied by a majority of the Circuit Courts of Appeals. 72 Precisely how our
historical understanding of the Second Amendment right, the burdens laws
place on individuals, or the government's interest in gun regulation are relevant to the analysis is still being determined on a case by case basis.
Though the application of Heller is still in its infancy, the cases that have
been decided raise the concern that following Heller to the letter is impracticable and obstructs meaningful gun policy reform.
1. Step One: Historical Analysis
In some cases, the historical evidence of a particular gun law supports
the inference that the regulated activity was not understood to be within the
scope of the pre-existing right protected by the Constitution. 73 In Hightower v. City of Boston, a former police officer's Class A license to carry a
concealed wea on (CCL) was revoked for omitting pending charges on her
renewal form.' 4 Historical evidence supported the conclusion that the right
to carry a concealed weapon in public is not within the scope of the Second
Amendment.7 5 The Heller opinion itself stated "the majority of 19thcentury courts" upheld prohibitions on concealed carry. 76 Thus, the licensing at issue in this case was presumptively lawful based on its longstanding
place in the historical record.7 7 The court concluded that the revocation
was constitutional under any scrutiny because requiring truthful information is a necessary component for a lawful licensing scheme to function.78 The court abstained from deciding what level of scrutiny applies to
laws falling outside of the scope of the Second Amendment because it was
not necessary to resolve the case.7 9
Similarly, in United States v. Rene E.,80 the First Circuit upheld a gun
law based on evidence of historical analogues to the present day regulation
-the federal prohibition on possessing a handgun as a juvenile.81 Like the
law in Hightower, the regulation prohibiting juveniles from possessing
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
See cases cited supra note 55.
Hightower v. City of Bos., 693 F.3d 61, 73 (1st Cir. 2012).
Id. at 65.
Id. at 73.
Id. at 73-74 (quoting Heller, 554 U.S. at 626).
Id. at 74.
Id. at 75.
Id.
United States v. Rene E., 583 F.3d 8, 9 (1st Cir. 2012).
Id. at 12.
438
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
handguns has historically been a part of lawful gun regulation. 82 Though
the statute was new, rather than longstanding, having been enacted in
1994,83 the First Circuit rested its conclusion on traditional analogues.8 4
For example, a number of states enacted laws during the late nineteenth
century prohibiting the possession and transfer of arms to minors because
of public safety concerns.8 5 Also, many states prohibited juveniles from
participating in the militia during the founding era.86 Based on the historical evidence, the First Circuit upheld the statute without resorting to a
means-end analysis.8 7
Unlike the previous two cases, in which analytical comparison to traditional regulation supported upholding the law in question, the following
two cases demonstrate how the courts can find the same historical record to
support different conclusions. In Moore v. Madigan, the issue before the
Seventh Circuit was whether the "Second Amendment creates a right of
self-defense outside the home." 88 The appellees argued that there was no
individual right to carry arms in public-an issue left open because Heller
limited its holding to the home-and provided the Seventh Circuit with historical evidence to support their argument. 89 For example, the appellees relied on the Statute of Northampton (1328), Sir John Knight's Case (1686),
and Blackstone's commentaries (1769) to demonstrate "that there was no
generally recognized private right to carry arms in public" when the Second
Amendment was ratified. 90
Perhaps disingenuously, the Seventh Circuit found that Heller's historical analysis supporting the existence of an individual right foreclosed the
constitutionality of flat bans on keeping firearms in the home and in public. 9 1The court reasoned that if the purpose of the individual right was selfdefense, and the need for self-defense is greater outside the home than inside it, then the purpose of the individual right must encompass the right to
keep and bear arms in public. 9 2 According to this reasoning, it would be ir82.
Id.
83.
Id.
84.
Id. at 14-16.
85.
Id. at 14.
86.
Id.
87.
Id.
Moore v. Madigan, 702 F.3d 933, 934-35 (7th Cir. 2012).
88.
Id.
89.
90. Id. at 936. These sources were cited with approval in Heller. Dist. of Columbia v.
Heller, 554 U.S. 570, 592-619 (2008).
91.
Moore, 702 F.3d at 937, 941.
Id. at 935-36 ("Heller repeatedly invokes a broader Second Amendment right than
92.
the right to have a gun in one's home, as when it says that the amendment 'guarantee[s] the
individual right to possess and carry weapons in case of confrontation.' Confrontations are
2014]
REPLACING THE SECOND AMENDMENT
439
rational to read the historical evidence to imply that the exercise of the individual right to self-defense is subject to strict regulation outside the
home, but regulations are subject to much greater scrutiny under the Second Amendment within the home.
In contrast to Moore, the Second Circuit had a distinctly different impression of what the historical analysis conducted in Heller said about carrying firearms in public. 93 In Kachalsky v. County of Westchester, the New
York law challenged was similar to the Illinois law challenged in Moore
with one important distinction. 94 Unlike the Illinois statute, the New York
ban on carrying arms in public included a catch-all exception to its general
prohibition.9 5 The police commissioner may issue a license to carry in public if the applicant shows propercause exists for the license. 96 Proper cause
exists for a license to carry without restriction if the applicant demonstrates
"a special need for self-protection distinguishable from that of the general
community or of persons in the same profession." 97 Accordingly, the New
York statute prohibits the vast majority of New York residents from carrying a firearm in public for the purpose of self-defense. 98
Because of the difference in the laws, the question before the court in
Kachalsky, whether New York can "limit handgun licenses to those
demonstrating a special need for self-protection," was distinguishable from
the question asked in Moore. 99 On that basis, the cases are distinguishable,
not inconsistent. However, the point is to illustrate different interpretations
of the same historical evidence. The Second Circuit was much more candid
about the strength of the historical record before it: "[h]istory and tradition
do not speak with one voice here." 100 In the opinion, the court weighed the
historical evidence to conclude that "state regulation of the use of firearms
in public was 'enshrined within the scope' of the Second Amendment when
it was adopted." 10 ' Such evidence included the fact that the New York law
restricting gun possession in public predated the Constitution, most states
banned concealed carry in the nineteenth century, and others banned the
not limited to the home.").
Id. at 943 (Williams, J., dissenting).
93.
94.
See Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 86 (2d Cir. 2012) (listing the
requirements for a firearms license under N.Y. law); see also Moore, 702 F.3d at 941 (majority opinion).
95.
Moore, 702 F.3d at 941.
96.
Kachalsky, 701 F.3d at 86.
97.
Id.
98.
Id.
99.
Id.
100.
Id. at 92.
101.
Id. at 96.
CRIMINAL AND CIVIL CONFINEMENT
440
[Vol. 40:427
sale of concealable weapons.1 02 Further, the court was persuaded to apply a
different standard in the home because applying higher scrutiny to laws
regulating the exercise of individual rights in the home is not unique in
constitutional law. 10 3 The court went on to afford "substantial deference" to
the legislature's decision that the licensing scheme in New York was substantially related to an important government interest.104
2. Step Two: Burden Analysis and Interest Balancing
Once it is decided that a law falls within the scope of the Second
Amendment, courts must decide how to review its constitutionality. 105 Under Heller, the court must apply a form of heightened scrutiny, but the circuits have to determine which incarnation of heightened scrutiny is appropriate. 106 As discussed below, the courts have applied intermediate scrutiny
in most cases.107 The application of intermediate scrutiny raises two questions. First, are there any criticisms of the intermediate scrutiny test? Second, how will a gun law's proponent argue that it is reasonably or substantially related to the important government interest, and how will a gun
law's opponent argue that it is not?
In United States v. Marzzarella, the Third Circuit stated "that they could
not be certain that the right to possess unmarked firearms in the home is
excluded from the right to bear arms. Because [the Third Circuit] conclude[d] [the law] would pass constitutional muster even if it burdens protected conduct, [it did] not decide whether Marzzarella's right to bear arms
was infringed." 0 8 The court decided intermediate scrutiny applied to this
statute because the regulation did not unduly burden protected conduct.109
Thus, the law must serve an important or substantial governmental interest
or goal, and the "fit between the challenged regulation and the asserted objective [must] be reasonable, not perfect."' 10 Intermediate scrutiny does not
require the least restrictive means to the governments end or that the law be
narrowly tailored, but it cannot burden the protected activity "more than is
reasonably necessary.""' Ultimately, the court found that law enforcement
has an important interest in tracing weapons to investigate crimes and the
102.
Id. at 95-97.
103.
Id.
104.
105.
106.
107.
108.
109.
110.
Id. at 97.
See, e.g., Moore v. Madigan, 702 F.3d 933, 947 (7th Cir. 2012).
Dist. of Columbia v. Heller, 554 U.S. 570, 628 (2008).
See cases cited infra notes 113-117 and accompanying text.
United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010).
Id.
Id.
111.
Id.
2014]
REPLACING THE SECOND AMENDMENT
441
law only prohibits conduct aimed at making a firearm impossible to
trace.112
The Second,' 13 Fourth,1 4 Seventh,"' Tenth,1 6 and D.C. Circuits" 7
similarly used intermediate scrutiny in light of finding the historical evidence ambiguous. In Kachalsky, intermediate scrutiny applied to laws that
do not burden activity within the home.11 8 The court reasoned that defending hearth and home is the "core" of the Second Amendment's purpose,
and in other individual rights contexts, regulation of activity on the fringe
of the right's purpose, as opposed to at the core of the right's purpose, is
subject to intermediate scrutiny.11 9 Secondly, the government interest in
public safety is higher outside the home than it is inside the home, and historical regulation of possessing arms in public supports that distinction.120
Applying intermediate scrutiny, the law was upheld because it was substantially related to the achievement of an important government interest.121
The court found the law was substantially related to public safety and crime
prevention after giving substantial deference to legislative judgment and
finding the legislature made reasonable inferences based on substantial evidence.122
The Fourth Circuit described how it expected courts to decide what scrutiny to apply in Second Amendment cases:
[A]s has been the experience under the First Amendment,... courts
will employ different types of scrutiny in assessing burdens on Second
112.
Id.
113.
Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89, 93 (2d Cir. 2012) (applying
intermediate scrutiny to license to carry statute that made issuance discretionary and required the applicant demonstrate probable cause to need a gun for self-defense different
from the general population).
114.
United States v. Masciandaro, 638 F.3d 458, 459-60 (4th Cir. 2010) (applying intermediate scrutiny to federal law banning possession of firearm in a national park).
115.
See United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (applying intermediate scrutiny implicitly, the court upholds a law prohibiting violent misdemeanants from possessing a handgun because it bears a "substantial relation" to protecting an
"important government interest," though it is not the least restrictive means).
116.
United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010) (applying intermediate
scrutiny to a law prohibiting a person under a domestic protection order from possessing a
handgun).
117.
Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011) (applying intermediate scrutiny to prohibition on assault rifles and large magazines).
118.
Kachalsky, 701 F.3d at 89, 95.
119.
Id.
120.
Id.
121.
Id.
122.
Id.
CRIMINAL AND CIVIL CONFINEMENT
442
[Vol. 40:427
Amendment rights, depending on the character of the Second Amendment question presented. Under such an approach, we would take into
account the nature of a person's Second Amendment interest, the extent
to which those interests are burdened by government regulation, and the
strength of the government's justifications for the regulation. 12 3
Taking these factors into account, the court applied a similar test to the
one invoked in Kachalsky: the prohibition must be "reasonably adapted to a
substantial government interest." 124 Protecting public safety in parks was a
substantial interest, and prohibiting the possession of concealed loaded
firearms was reasonably adapted.11 The law prohibited possession of a
loaded firearm in a motor vehicle. 126 According to the court, it "could have
been reasonably concluded that when concealed within a motor vehicle, a
loaded weapon becomes even more dangerous," comparing said law to the
"litany of state concealed carry prohibitions specifically identified as valid
in Heller."127
The Tenth Circuit applied intermediate scrutiny to a statute prohibiting
individuals subject to a domestic protection order from possessing firearms. 128 Upholding the law, the circuit court found it important to distinguish the burden imposed under this statute from the burden imposed by
the statute at issue in Heller.129 The law in uestion did not infringe on the
general public's Second Amendment rights.
30
Rather, the law specifically
targeted a class of persons that is more likely to engage in violent behavior.1 3 1 The pre-existing right codified by the Second Amendment has never
been understood to protect a dangerous individual's right to keep and bear
arms. 132 Thus, the regulated activity, possession by a person under a domestic protection order, did not trigger strict scrutiny. 1 The circuit court
applied the familiar "substantially related to an important government interest" test. 134
These examples demonstrate a common theme in developing Second
Amendment jurisprudence. The use of burden analysis and interest balanc-
123.
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).
Id. at 473.
Id.
Id.
Id.
United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010).
Id.
Id.
Id.
Id.
Id.
Id.
2014]
REPLACING THE SECOND AMENDMENT
443
ing to decide whether gun laws are constitutional where the Hellerapproved historical analysis fails to provide answers.
B. The Two Part Heller Test Will Fail to Satisfy the Gun Policy Goals
of the American People
Under the Heller test, the role of historical evidence is particularly important.135 Heller relied heavily on history and tradition to conclude that
there was an individual right to keep and bear arms for self-defense in case
of confrontation and to find that the right was most acute for law-abiding,
responsible citizens to keep and bear arms at home. 136 However, the application of Heller has revealed two fundamental problems caused by an overreliance on history and tradition in Second Amendment jurisprudence. The
ambiguity of the historical record makes it a faulty foundation on which to
reason, and the preference for longstanding regulations preserves the status
quo and prejudices an innovative approach to gun policy.
Under step two of the Heller test, some form of heightened scrutiny is
applied to laws infringing on activity protected by the Second Amendment.
The circuit courts have demonstrated a preference for deciding cases under
step two because of the weaknesses found in the analysis required by step
one. 137 Two concerns are subsequently raised from the prospect of applying intermediate scrutiny to gun laws. The first is rooted in the validity of
the test itself. The second stems from problems revealed by its application.
1. Overreliance on the Ambiguous Historical Record of
American Gun Regulation
A key problem with applying a historical analysis to gun regulations is
that the historical record is ambiguous, and the problem lies as much in the
lack of evidence as it does in the exercise. A truly objective look at historical events simply reports what happened and when. Either there is some
documentation or other evidence that an event occurred or there is not any
evidence. Drawing conclusions from what historical events tell us about the
way people in that era lived and understood the world brings us one step
further from complete objectivity as the exercise combines hard facts with
135.
See, e.g., United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (applying
longstanding tradition of affording different rights to juveniles to uphold law prohibiting
juveniles from possessing firearms); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 83-84
(2d Cir. 2012) ("Historical prevalence of the regulation of firearms in public demonstrates
that while the Second Amendment's core concerns are strongest inside hearth and home,
states have long recognized a countervailing and competing set of concerns with regard to
handgun ownership in public.").
136.
See supra Part II.
137.
See, e.g., Rene E., 583 F.3d at 16; Kachalsky, 701 F.3d at 83-92; Reese, 627 F.3d
at 802.
444
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
personal opinion. Simply put, trying to synthesize the mindset of a nation's
people-a body consisting of countless demographics; life experiences;
and legal, political, and economic interests-based on dozens of legislative
records and legal commentaries that support equally plausible yet conflicting conclusions is an exercise that necessitates far too many assumptions to
be reliable. Yet, legislative records and legal commentaries are what the
Supreme Court determined are the best means to decide when gun regulations are prohibited by the Constitution.
The evidence that overreliance on an ambiguous historical record leads
to inconsistent results comes directly from the cases. 138 For example, in
Heller itself, the four dissenting justices disagreed with the majority's conclusion that there was an individual right at all based on the historical record. 139 In Moore, the Illinois law prohibiting carrying guns in public is an
example of innovative lawmaking that sought to enforce legislative judgment on the danger of possessing guns in public.140 According to the majority, the law limited conduct too broadly to be comparable to a historical
analogue that created a narrow exclusion to the scope of the Second
Amendment. 14 1 However, the dissent in Moore was not convinced. 142 Systematically, the dissent analyzed the same evidence relied on by the majority and Heller-Blackstone Commentaries, the Statute of Northampton, Sir
John Knight's Case, and Edward Coke's commentaries, among others-to
persuasively argue that there was no right to carry a loaded gun outside the
home understood when the Second Amendment was written.143 Similarly,
the historical analysis in Kachalsky drew the court to conclude that state
regulation banning most people from possessing arms in public was constitutional, whereas the majority in Moore concluded that the historical evidence prevented the state from banning most people from possessing arms
in public. 1"
The weakness of relying on an ambiguous historical record is that it will
lead to inconsistency if judges cherry pick the historical evidence needed to
138.
See, e.g., Dist. of Columbia v. Heller, 554 U.S. 570, 636-40 (2008) (Stevens, J.,
dissenting); Moore v. Madigan, 702 F.3d 933, 947 (7th Cir. 2012) (Williams, J., dissenting);
Kachalsky, 701 F.3d at 97.
139.
Heller,554 U.S. at 636-40 (Stevens, J., dissenting).
140.
Moore, 702 F.3d at 936.
141.
Id. at 947.
142.
Id. (Williams, J., dissenting).
143.
Id. (Williams, J., dissenting) ("I am not convinced that the implication of the Heller and McDonald decisions is that the Second Amendment right to have ready-to-use firearms for potential self-defense extends beyond the home."); see also Charles, supra note 57,
at 3.
144.
Compare Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 97 (2d Cir. 2012), with
Moore, 702 F.3d at 935-36.
2014]
REPLACING THE SECOND AMENDMENT
445
strike down or uphold a gun law. Inevitably, both sides of the gun policy
debate should feel anxious that judges, rather than legislatures, have such
power over gun policy. A finding that the historical evidence demonstrates
that an activity is not protected by the Second Amendment, and thus subject to rational basis scrutiny, is a sure way to uphold the regulation. At the
same time, finding that the historical evidence demonstrates that the activity is stringently protected by the Second Amendment is a sure way to strike
the law down. The evidence of this effect is already showing true through
the case law discussed above. Notwithstanding the potential for abuse, the
ambiguous record has encouraged the circuit courts to assume, without resort to exhaustive historical analysis, that the Second Amendment applies
and subjects the law to a balancing test. The idea that the Heller test could
dissolve into a balancing inquiry is bad news for the critics of interestbalancing tests-including, most importantly, the Heller majority that rejected a proportionality test.
The second concern with the Heller test's reliance on history is that the
preference for longstanding gun laws prejudices innovative approaches to
gun policy. A fair critique to this argument would be that, on balance, the
status quo of American gun policy works for a majority of Americans. As
this Note has mentioned, the argument for a new constitutional amendment
rest in large part on the presumption that a change to gun policy is needed
to deal with the contemporary problems Americans face. What one might
describe as longstanding or traditional gun regulations, laws prohibiting juveniles from possessing guns or rohibiting fraudulent permit applications,
are constitutional under Heller.1 Yet the prohibited activity persists in our
society, demonstrating that more innovative methods of restricting dangerous gun activity may be needed to further the public safety interests. Unfortunately, innovative methods of gun legislation will not enjoy the presumption of validity these older laws have under Heller.
For example, in United States v. Skoien, the Seventh Circuit explained a
very important limitation Heller places on innovative gun laws. 1 6 Justice
Scalia opined that laws prohibiting felons from possessing arms are constitutional because those laws are "longstanding." 47 However, the federal
prohibition on felons and the mentally ill did not arise until the twentieth
century.14 8 Justice Breyer called attention to the majority's poor reasoning
on this point.149 It would make little sense, the Seventh Circuit stated, "that
145.
See generally United States v. Rene E., 583 F.3d 8 (1st Cir. 2009); Hightower v.
City of Bos., 822 F. Supp. 2d 38 (D. Mass. 2011).
146.
United States v. Skoien, 614 F.3d 638, 640-41 (7th Cir. 2010) (en banc).
147.
Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008).
Skoien, 614 F.3d at 641 (en banc).
148.
Heller, 554 U.S. at 641 (Breyer, J., dissenting).
149.
446
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
a [relatively new statute] is unconstitutional in 201050but will become constitutional by 2043, when it will be 'longstanding."'
Indeed, it makes little sense. The shortcoming with Heller's unyielding
reliance on history is that it handcuffs our legislators to the laws of the past
regardless of the problems faced today. Individuals who are predisposed to
violence because of mental illness or criminal history pose a grave safety
threat. 151 For public safety reasons, our nation has historically disqualified
unsafe individuals from possessing arms. 152 Yet one of the most often repeated claims of the gun rights proponents is that laws prohibitin individuals from possessing guns only deters law-abiding individuals.
To the
extent that criminals or the mentally ill may choose to break the law anyway, they are right. Those individuals will find an illegal way to get their
guns.
So, the historic disqualification of dangerous individuals is not enough
to deal with a contemporary problem. Innovative law drafting could disqualify the cohabitants of dangerous individuals from possessing firearms.
On the other hand, a national registration system could require mandatory
disclosure of all relatives with mental illnesses. Better still, mandatory safety training could include a personality test like the ones used for potential
law enforcers to prevent individuals with undiagnosed mental illnesses
from possessing weapons. Additionally, convictions that disqualify individuals from possessing firearms could be expanded from felonies and violent misdemeanors to drug possession, driving while intoxicated, or drunk
and disorderly conduct. Yet, these laws will not be presumptively lawful,
as this country has never pursued such broad prohibitions to curtail dangerous individuals' access to arms in the past. Without a historical analogue,
laws like these would have to be justified under heightened scrutiny.
150.
Skoien, 614 F.3d at 641 (en banc). This flaw was discussed in Justice Breyer's
Heller dissent. Heller, 554 U.S. at 641 (Breyer, J., dissenting).
151.
E. Lea Johnston, Vulnerability and Just Dessert: A Theory of Sentencing and
Mental Illness, 103 J. CRiM. L. & CRIMINOLOGY 160-63 (2013); Randy Borum et al., Threat
Assessment: Defining an Approach for Evaluating Risk of Targeted Violence, 17 BEHAV.
Sci. & L. 330-31 (1999); Richard A. Friedman, In Gun Debate, a Misguided Focus on Mental Illness, N.Y. TIMEs, Dec. 17, 2012, http://www.nytimes.com/2012/12/18/health/amisguided-focus-on-mental-illness-in-gun-control-debate.html?_r-0.
152.
Categories of Prohibited People Policy Summary, LAW CTR. To PREVENT GUN
VIOLENCE, (Sept. 29, 2013), http://smartgunlaws.org/prohibited-people-gun-purchaserpolicy-summary/.
153.
Missouri: Anti-Gun Legislation Introduced That Would Turn Law-Abiding Gun
Owners into Felons, NRA-LA (Feb. 13, 2013), http://www.nraila.org/legislation/statelegislation/2013/2/missouri-anti-gun-legislation-introduced-that-would-turn-law-abidinggun-owners-into-felons.aspx ("Criminals-by definition-violate laws, especially gun control laws. They will never surrender their firearms, or comply with any gun control
scheme.").
2014]
REPLACING THE SECOND AMENDMENT
447
Another limitation of the reliance on history plays itself out clearly in the
context of regulations targeting classifications of weapons. For example,
Senator Feinstein's Assault Weapons Ban of 2013 will prohibit the sale of
assault rifles and magazines with the capacity to hold more than ten rounds
of ammunition. 154 According to Heller, there is a historical tradition of
prohibiting arms that are "common" or "dangerous and unusual."1 55 However, classifying arms poses a challenge; in fact, "there may not be a perfect way of reading Heller on this point."' 5 6
To the gun rights proponents, semi-automatic rifles are commonly
owned for lawful purposes, and they have been commonly owned since
their predecessors were invented during the nineteenth century.' 5 7 For example, the first lever-action repeating rifle was manufactured in 1866.151
But take this rifle as an exercise applying Heller. It has been a popular arm
since its invention, with sales totaling in the millions.' 59 But, had Heller
been in place when it was invented, a legal challenge to its prohibition
would not have been able to claim it was common.160 Should a weapon's
popularity alone justify protection under the Second Amendment? The gun
rights proponent will answer yes. The gun control proponent will argue that
at a certain point a weapon becomes so lethal that its utility as a killing machine is more than necessary to fulfill the purpose of self-defense, and
weapons fitting that category fall outside the scope of the Second Amendment. Until the Supreme Court or the people say otherwise, what is necessary for self-defense comes down to individual judgments about the world,
objectively measured by the aggregate popularity of a weapon. Due to their
popularity among gun owners, a ban on semi-automatic rifles and large
magazines is not likely to survive a constitutional challenge on the ground
that they are dangerous and unusual.16 1 For the gun control proponent, it is
unfortunate that a law banning these weapons was not enacted before they
became common.
In sum, reliance on traditionalism to decide the meaning of the Second
Amendment leads to two problems. First, an ambiguous historical record
leaves the body of law subject to inconsistency and open to abuse. Second,
justifying the existence of modem gun laws on the grounds that they are
154.
S. 150, 113th Cong. (2013);.Stopping the Spread of Deadly Assault Weapons,
DIANNE FEINSTEIN, http://www.feinstein.senate.gov/public/index.cfm/assault-weapons (last
visited Mar. 27, 2013).
155.
Heller, 554 U.S. at 627.
156.
Volokh, supra note 9, at 1482.
157.
See O'Shea, supra note 38; Volokh, supra note 9, at 1477.
158.
O'Shea, supra note 38, at 381-82.
Id. at 382.
159.
Id.
160.
161.
See id. at 388-89. But see Volokh, supra note 9, at 1478-81.
448
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:427
traditional is valuable to the reduction of gun-related tragedies only insofar
as the old laws are effective at reducing them. If the rise in domestic gun
violence and the polarization of the gun policy debate are indications that
the current American gun policy is neither affecting its purpose nor satisfactorily protecting individual rights, then the Heller test must be evaluated
for its ability to accommodate innovative changes. As discussed above, the
first step of the Heller test is not likely to consistently accommodate innovative changes because the historical ambiguity is subject to abuse, undercutting consistency, and the reliance on traditionalism prejudices new
laws.16 2 With this in mind, the next section discusses whether the second
step of the Heller test can accommodate changes in light of the first step's
inability to do so.
2. The Cure to Step One is no Cure at All
The majority of circuit court cases reviewing gun laws have decided intermediate scrutiny should apply because the law in question did not impose a substantial burden on the core of the Second Amendment right,
thereby combining aspects of a burden analysis and an interest-balancing
approach.163 The intermediate scrutiny test requires the law to be substantially or reasonabl related to a significant, important, or substantial government interest
The first concern raised by intermediate scrutiny is
rooted in its criticism, particularly among conservatives and libertarians,
for being inconsistent and judge empowering.16 5 The second concern is
rooted in its application; namely, the absence of empirical data to support a
legislature's conclusion that a un regulation is substantially related to public safety or law enforcement.1 6 The very premise that more gun regulation
is effective at reducing gun violence is contentious because the empirical
evidence of a link is inconclusive.167 The following discussion will demonstrate that step two fails to fill the void left in lieu of step one's deficiencies. In sum, the current constitutional framework for the Second Amendment will fail.
In this instance, the persuasiveness of the criticisms against interestbalancing and burden analysis is less important than the group that makes
them. Justice Scalia is on the record as an ardent opponent of burden analysis and intermediate scrutiny.168 In the Heller opinion, Scalia rejected
162.
163.
164.
165.
166.
167.
168.
See Volokh, supra note 9, at 1461.
See supraPart II.A.2.; Miller, supra note 57, at 867-68.
See supraPart IH.A.2.
Miller, supra note 57, at 871; Gould, supra note 20, at 1536, 1568.
Miller, supra note 57, at 869; Gould, supra note 20, at 1568.
TUSHNET, supra note 4, at 101; DOHERTY, supranote 11.
Gould, supra note 20, at 1568, 1574.
2014]
REPLACING THE SECOND AMENDMENT
449
Breyer's proportionality test because:
[N]o other enumerated constitutional right whose core protection has
been subjected to a freestanding "interest-balancing" approach. The
very enumeration of the right takes out of the hands of governmenteven the Third Branch of Government-the power to decide on a caseby-case basis whether the right is really worth insisting upon. 169
The rejection of Breyer's proportionality test raises an important question: is there any difference between applying a proportionality test and applying strict, intermediate, or rational basis scrutiny? The proportionality
test "asks whether the statute burdens a protected interest in a way or to an
extent that is out of proportion to the statute's salutary effects upon other
important governmental interests."17 0 The distinction is that the "correct
proportion" that passes the test under the proportionality analysis is up to
the judge.171 On the other hand, the "correct proportion" that passes the test
under traditional levels of scrutiny is fixed. The law must be narrowly
tailored to a compelling state interest, 17 3 substantially related to an important state interest, 174 or rationally related to a legitimate state interest for
each respective standard.175
In theory, this makes the established levels of scrutiny less susceptible to
the policy whims of judges than a proportionality test. But, the elements of
intermediate scrutiny are vague and ambiguous. What constitutes an "important" government interest? What does not? What difference is there between a means that is related to the ends and a means that is substantially
related to its ends? In practice, the real difference between a proportionality
test and intermediate scrutiny is that when applying intermediate scrutiny
the judge must "say the magic words" for the proportion to be constitutional rather than find the law constitutional because it is proportional.17 6 In
light of this similarity, it is unlikely that the Heller majority would accept
the circuit courts' decision to turn to intermediate scrutiny as the majority
did when it rejected a proportionality test.
For Justice Scalia, a conservative and proponent of restricted government, and gun rights proponents, most of which share similar ideological
values, the concept that a fundamental right to keep and carry arms could
be infringed as long as the means of regulation is substantially related to
169.
170.
171.
172.
173.
174.
175.
176.
Dist. of Columbia v. Heller, 554 U.S. 570, 634 (2008).
Id. at 689-90.
Id.
Id.
Gould, supra note 20, at 1566 (strict scrutiny).
See supra Part III.A.2 (intermediate scrutiny).
Heller,554 U.S. at 628 n.20 (rational basis scrutiny).
Id. at 690.
450
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public safety is unacceptable. 177 For those that consider the right to keep
and bear arms to be sacrosanct, it is too easy for the government to take
away that right under intermediate scrutiny. In light of the public and judicial opposition to the use of interest-balancing, the test currently being employed by a majority of circuit courts is an unsustainable means for reviewing Second Amendment cases. For as long as intermediate scrutiny
dominates Second Amendment jurisprudence, as it has done since Heller, it
will cause gun rights proponents to fear for the safety of their sacrosanct
right, and if the practice persists, the conservative majority of the Court is
likely to compel a more stringent level of review.
The second concern raised by the use of intermediate scrutiny comes
from the difficulty law makers will have demonstrating that the regulation
is substantially related to an important government interest. Take, for example, the proposed Assault Weapons Ban.178 There is a lack of empirical
evidence showing that banning assault weapons will increase public safety.179 In fact, gun rights proponents arduously argue that banning assault
weapons will decrease public safety. 80 Gun rights proponents do not have
greater support for their position. On the contrary, the problem is that the
available studies on the relation between gun laws and the reduction or increase of gun tragedies are inconclusive.'a8 In the absence of clear empirical support for one side of the debate over the other, parties interested in
American gun policy tend to validate the studies supporting the conclusion
they want over equivalent studies suggesting the opposite conclusion. Professor Tushnet described the stalemate eloquently:
It would be nice to think that disagreements over policy could be resolved by empirical evidence. And maybe some can-but not, I think,
policy disputes about which people care intensely. The reason is that all
empirical studies are imperfect, as good social scientists admit. Partisans will identify real flaws-that is, flaws that social scientists would
agree are defects-in studies that point to conclusions with which they
disagree, and try to explain away the flaws their opponents identify in
177.
Id.
178.
TUSHNET, supra note 4, at 101.
179.
Id.
180.
DOHERTY, supra note 11, at 86-93 (arguing that the failure of the D.C. gun ban to
reduce gun crime rates, together with national studies on the instances of defensive uses of
firearms, tends to prove the theory that more guns equals less crime). But see TUSHNET, supra note 4, at 93-95 (describing peer reviews that found the more guns less crime model
produced inconclusive results).
181.
DOHERTY, supra note 11; TUSHNET, supra note 4, at 101; Volokh, supra note 9, at
1466 ("Scientific proof of any of these theories is very hard to get.").
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the studies that support the policies with which they agree. 182
Diametrically opposed legislators have the monumental task of finding
compromise on gun regulations without clear empirical support for what is
or is not effective. If gun laws are challenged, then law makers will most
likely have to demonstrate (again) that the law was substantially related to
public safety under intermediate scrutiny.18 3 Unfortunately, as much empirical evidence exists undercutting the premise that less guns equals less
crime as exists supporting it, making the successful defense of future gun
laws difficult.184 In Illinois, a flat ban on gun possession outside the home
relied on that premise, fewer guns in public equals less gun violence in
public, but in Moore, the studies cited to support and to oppose the legislation cancelled each other.18 5 Accordingly, the court found that Illinois
could only prove the ban on public possession of arms for the general
population was rationally related to public safety rather than substantially
related or narrowly tailored under heightened scrutiny.186
In contrast, federal bans on the possession of arms by felons, domestic
violence misdemeanants, or ersons under domestic protection orders have
been held to pass scrutiny. The means, for example, keeping guns away
from those with a violent history, are more narrowly tailored to achieving
public safety. The difference is the breadth with which the law regulates.
The greater a law's relation to public safety, such as requiring guns to have
serial numbers to enable tracking weapons used in crimes 188 and requiring
back ound checks on sales to screen for criminal or mental health records, 89 the greater the probability that the law is constitutional.190 On the
other hand, prohibitions affecting broad classes of people, weapons, places
to carry, or means of sale run a high risk of being unconstitutional because
there is less evidence to show that the law is substantially related to public
safety-as demonstrated in Moore. 19 1
What does the interplay between the breadth of a regulation and the
available studies on the relation between regulation and gun violence tell us
182.
4
TUSHNET, supra note , at 101.
183.
See supra Part III.A.2.
184.
TUSHNET, supra note 4.
185.
Moore v. Madigan, 702 F.3d 933, 939-40 (7th Cir. 2012).
Id.
186.
See supra Part III.A.2.
187.
United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010).
188.
E.g., United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011).
189.
Not all relationships must be proven by empirical evidence. The concept that pro190.
hibiting anyone from possessing a machine gun for self-defense is sufficiently related to
public safety does not need empirical support, it is just common sense.
191.
Moore, 702 F.3d at 939-40.
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about the efficiency of the Heller test? This exercise demonstrates that law
makers, regardless of how great the political support for gun control may
be, are limited by the burden of heightened judicial scrutiny because they
lack the empirical basis to show a relationship between broad gun regulation and gun tragedy prevention exists. Arguably, this strikes a balance between gun rights and gun control by preventing legislators from unnecessarily burdening the rights of lawful gun owners. Balance is a good thing.
But the trouble is that we don't know what burdens are necessary until we
can prove that they are effective, and we can't prove that they are effective
until they are enacted. If the assumption of this article is true-that Americans seek a change in gun policy that effectively prevents more gun tragedies from happening-then heightened scrutiny is going to be a real impediment to innovative law making, leaving Americans seeking change
dissatisfied with the current state of the law.
C. Summation: Under Heller, Nobody Wins
The previous discussion demonstrates that the Heller test will fail the
American people's desire for the right to self-defense and effective gun
tragedy prevention because of the irreconcilable demands imposed by the
opinion. Heller provides that history and tradition are to play a dominant
role in defining what gun regulations are constitutionally permissible.192
However, courts prefer justifying enacted laws by subjecting them to balancing rather than historical analysis because of the flaws inherent in step
one of the test. Overreliance on the historical record subjects American gun
policy to the policy preferences of judges and prejudices innovative gun
regulation regardless of political support. In light of the flaws in step one,
the circuit courts created step two to try and fix the problem.
Unfortunately, interest balancing has damning flaws too. Most importantly, conservatives and libertarians, whether on the Court, duly elected, or members of the general public, are not going to be satisfied that their
Second Amendment rights are being sufficiently protected under "magic
words" intermediate scrutiny. Likewise, the correlation between a lack of
empirical support and the imposition of heightened scrutiny will frustrate
gun control proponents. Duly elected laws, supported by a majority of the
people's elected representatives, are at risk of being struck down if they are
written too broadly. However, broad prohibitions on the sale of semiautomatic assault rifles and large capacity magazines, broad no-carry areas
near sensitive places such as schools, or broad disqualifications from Second Amendment protection of individuals living with or near dangerous
persons may be the sort of innovative legislation needed to effectively diminish the number of gun tragedies in the United States. Since the current
192.
See Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008).
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data on the effectiveness of gun regulation is generally inconclusive, there
is no way to know if these measures will be effective until they are implemented and studied. However, they cannot be implemented until studies
exist that show they are effective.
In the Heller test, nobody wins. The prejudice against innovative gun
laws prevents the exploration of a more effective gun policy than the one
currently in place. In time, the Supreme Court could adjust its test. But the
American people need not wait for the Supreme Court to adjust its precedent. The American people can act now and definitively say what the right
to self-defense should encompass. It can be done in a way that honors the
principals enshrined by our Founders but provides for a mechanism to deal
with the demands of contemporary society. Part IV provides a rough
framework for an amendment that aims to accomplish those objectives. 19
IV. A NEW DAY FOR GUN POLICY
In the very beginning of this article, the civic and personal purposes of
the Second Amendment were discussed. 194 A constitutional amendment repealing and replacing the Second Amendment should honor those purposes, and it should provide a mechanism for innovative regulation-an objective the Heller test fails to accomplish. To recap, the three purposes of the
individual right to bear arms are for self-defense in case of confrontation
with criminals, to have a citizenry capable of forcefully opgosing tyrannical
rule, and for national defense in case of foreign invasion.
This Note proposes that the purposes of the Second Amendment may be
preserved by banning the commercial sale of ammunition while granting
the exclusive right to sell ammunition to the states. By giving the states the
power to regulate how ammunition is sold to its citizens, the ability of state
militias to rise up against an invading foreign power or a tyrannical federal
government will be preserved. If the time should come that a state agrees to
ban together and confront their oppressors, the state will be able to open its
ammunition supply accordingly. Furthermore local law enforcement is in a
better position than federal law enforcement to understand the ammunition
needs of its citizens. They will be familiar with local shooting range clubs
and the needs of hunters. Local law enforcement will also be in the best position to track suspicious sales of ammunition and thwart straw purchases
for criminal enterprises. The check on state power could be a federal floor,
a federal minimum of available ammunition for lawful purposes. Further
193.
This framework for a "new Second Amendment" is not meant to be a comprehensive guide to amending the Constitution. Rather, it is meant to suggest one possibility and to
start the conversation.
194.
See supraPart H.
See generally Heller, 554 U.S. at 570.
195.
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checks will come through other constitutional provisions such as due process and equal protection.
Most importantly, individuals will be able to choose what firearm best
suits their self-defense needs because the focus of regulation will turn away
from what guns people can possess to how much ammunition. Hundreds
upon hundreds of rounds are not needed for self-defense. In fact, if an individual needs more than ten rounds to defend themselves they should be required to seek more training for the proper use of their weapon. On the other hand, this country has witnessed time and time again the tragedy caused
when an endless supply of ammunition is available to dangerous persons.
By limiting individuals to a reasonable amount of ammunition to thwart a
home invasion or robbery-probably five to fifteen rounds-the government should successfully stop dangerous persons from exploiting the gun
ownership of their relatives in order to commit acts of atrocity. Once again,
federal minimums may be put in place to check state authority along with
principals of due process and equal protection.
V. CONCLUSION
This Note has described how Heller interpreted the Second Amendment,
and how the lower courts have applied Heller. After analyzing those decisions, fatal flaws in the Heller test emerge. Namely, Heller's reliance on
history to define the scope of the Second Amendment has proven unworkable because the historical record is ambiguous and inconsistent. In an effort
to solve the problem, the appellate courts have turned to intermediate scrutiny in order to evaluate gun regulations, but this solution will prove unsatisfactory-if not abhorrent-to both sides of the gun policy debate. The
sum of these observations brings this paper to its ultimate finding. American gun policy will remain stagnant and incapable of responding to contemporary challenges under the Heller framework-the test will break
down. The most direct way for America to develop an effective, new gun
policy is to take the matter away from the courts and author a new constitutional amendment that protects its values and its people.