Second Amendment Standards of Review: What the Supreme Court Left Unanswered in District of Columbia v. Heller – Note by Jason T. Anderson

From Volume 82, Number 3 (March 2009)

In June 2008 the Supreme Court issued its opinion in the case of District of Columbia v. Heller, its first directly concerning the Second Amendment since 1939. Heller involved a series of D.C. laws that had the effect of banning the possession of handguns. At the narrowest level, the Court was deciding whether a ban on handguns violated the Second Amendment; however, the broader issue facing the Court concerned the fundamental meaning of the Second Amendment: does the amendment protect a collective or individual right to bear arms? To that question, the Court answered the latter, thus ending an at-times heated debate among legal scholars and those on both sides of the gun control debate. But the Court left the door open for a new debate to begin in the Second Amendment context: what standard of review applies to legislation that restricts an individual’s right to bear arms? Writing for the majority, Justice Scalia noted that “[u]nder any of the standards of scrutiny that we have 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,” and—unapologetically—failed to identify which standard the majority was using in this case. Justice Breyer’s dissent chided Scalia for this move, claiming that this failure to be more specific “throw[s] into doubt the constitutionality of gun laws throughout the United States.”



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