In its landmark District of Columbia v. Heller decision, the Supreme Court announced that the Second Amendment guarantees an individual right of the people to bear arms. Although Heller answered a long-standing question about the Second Amendment’s meaning, there remain issues to be settled. One of the most pressing—and the main topic of this Note—is the proper method of review and application of this individual right. Without guidance on these issues, several circuit courts have followed different approaches. Although opportunities to provide some clarity have come before the Supreme Court, so far, it has denied certiorari.
This Note will not opine on the merits of the individualist or collectivist approaches to the interpretation of the Second Amendment, as this question has been answered conclusively in Heller. Instead, this Note will provide a suggested framework for the application of this individual right to keep and bear arms, and will progress as follows. Part I will offer a contextual history of the Second Amendment. Part II will make the case for why clarity on this issue is so desperately needed and is punctuated by a discussion of the Second Circuit’s particularly troubling application of the right. Part III will offer a proposed framework that, if adopted by the Supreme Court, can resolve the questions posed in Part II. Part IV will apply the framework to California concealed carry regulations. Finally, Part V will apply the framework to a new California law that is likely to make its way to the Ninth Circuit soon, thus allowing the Supreme Court to clarify Second Amendment jurisprudence further.

The regulation of firearms is one of the most volatile policy issues in the United States. Virtually every effort to regulate—or deregulate—the accessibility or usage of firearms raises dueling concerns of public safety and individual rights. Federal courts are no exception to the controversy, offering a microcosm of the broader public debate. The Supreme Court’s sharply divided decisions in District of Columbia v. Heller and McDonald v. City of Chicago are illustrative of the point; while Heller established the Second Amendment right to keep and bear arms in the individual context, and McDonald extended the right as fundamental and binding on the states, the decisions did little to fix the scope and magnitude of the newly created right, leaving it open to spirited debate. In the wake of the two decisions, lower courts have been left to grapple with how far and with what rigor to scrutinize state and local laws that may burden the right to keep and bear arms.

People may kill and injure people, but guns appear to be a weapon of choice. In the United States alone, there are over 32,000 firearm-related deaths annually and an additional 78,000 persons are injured as a result of interpersonal firearm violence. While a significant portion of the casualties are attributable to suicides, accidents, law enforcement, or self-defense, an appreciable portion are the product of criminal activity. Although exact numbers are difficult to ascertain, the Department of Justice estimates that each year, approximately 470,000 persons become victims of a crime committed with a firearm. But perhaps the most visible manifestations of gun violence are “mass shooting” incidents, drawing substantial media coverage and public concern. These variables, among others, animate concerns of public safety, giving rise to policy arguments for more stringent regulations of firearms.

This Note will first review the historical development of gun-control laws in the United States, including those referred to by the Supreme Court as “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” It will then analyze the extent to which the SAFE Act differs from such longstanding prohibitions and whether the Act is constitutional. Finally, this Note will consider whether, regardless of its constitutionality, the SAFE Act is an appropriate legislative response to gun violence or whether a recent proposal by a group of national experts on mental illness and gun violence might be more effective and more likely to pass constitutional muster.

The dialogue on guns in the United States tends to fall toward one of two extremes—“everyday, guns kill good people” or “everyday, guns kill bad people.” The debate becomes a battle of values between two groups with two very different, yet very passionately held worldviews. Even legal scholarship cannot immunize itself from devolving into normative discussions founded on what the law should be, rather than providing analysis of what the law actually is. Unfortunately, a more targeted discussion arising directly out of Second Amendment jurisprudence is particularly difficult, as the U.S. Supreme Court has provided very limited guidance on the types of gun regulations that can pass constitutional muster.

The Second Amendment to the Constitution is now part of “normal constitutional law,” which is to say that the discussion about its meaning has moved from the question of whether it means anything at all, to a well-established position that it protects an individual right, and is enforceable as such against both states and the federal government in United States courts. The extent of that individual right has not yet been fully fleshed out, and, of course, will (like other items of normal constitutional law) occasion disagreement on one issue or another into the foreseeable future.

Nonetheless, now that the right has achieved a measure of concreteness, it has begun, like other parts of the Bill of Rights, to cast its shadow across the law. And if the core of the shadow—or umbra—remains a bit unclear, what of the edge or penumbra? In this brief Essay, I will discuss some possible penumbral aspects of the Second Amendment, as it may be applied in the future. I will also discuss its possible interaction with other (up to now, at least) “underenforced” constitutional rights, and consider whether the normalization of the Second Amendment might imbue those rights with additional force. I will conclude with some guidelines, or at least suggestions, for further research.

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.”