On the narrowest reading, District of Columbia v. Heller and McDonald v. City of Chicago held that the Second Amendment protects an individual right to possess an operable handgun within one’s own home. Since those decisions, the Supreme Court has decided only one Second Amendment case: Caetano v. Massachusetts, where the Court rejected the notion that an arm falls outside constitutional protection merely because it did not exist at the time of the Second Amendment’s ratification.
Despite that holding, lower courts have largely limited the reach of Heller to its facts. In Kolbe v. Hogan, the Fourth Circuit, sitting en banc, placed AR-15 semiautomatic rifles outside the scope of the Second Amendment’s protection by classifying them as “weapons that are most useful in military service.” Similarly, other circuits have rejected Second Amendment claims concerning new arms by distinguishing such arms from the “quintessential self-defense weapon” of the handgun.
Some of this is due to Heller’s footnote 26, which noted that longstanding regulations are to be considered “presumptively lawful.” At least for the Ninth Circuit, such a presumption means the right to keep and bear arms does not include a right to carry an arm in public, whether openly or not.
But another reason for this confusion is that Heller explicitly declined to establish a framework for evaluating Second Amendment restrictions. Nevertheless, lower courts have predominantly employed the traditional tiers of scrutiny. If a law is not “presumptively lawful,” it is analyzed under strict scrutiny if it touches the core of the Second Amendment and imposes a severe burden on its exercise. Otherwise, it is analyzed under intermediate scrutiny. Such a test has been applied to uphold magazine capacity restrictions and waiting periods. A small minority of dissents have advocated for a different categorical test, most notably that of now-Justice Kavanaugh. These dissenting jurists instead assess firearms regulations based on “text, history, and tradition.”
Both sides may be right. Most Second Amendment cases can be categorized into three buckets. The first is about persons; the second about arms; and the third about manner. These different buckets may require different modes of analysis.
Because Heller determined that the Second Amendment’s prefatory clause neither limits nor expands the scope of the operative clause, the question to ask is not who may be in a “well-regulated militia.” Instead, the proper inquiry is on the scope of “the people” under the Second Amendment. There are no half measures here. An individual is either fully protected by the Second Amendment or fully outside its protection.
Because Heller also rejected limiting the scope of arms protected under the Second Amendment to only those that existed at the Founding, we must also ask which arms are protected by the Second Amendment and which are not. The distillation of Heller on this question in Caetano is probative but not dispositive because it only sets a floor. Like the first category, this second category might be best served by a history and tradition approach: arms that are commonly used by the people for lawful purposes fall within the scope of the Second Amendment. An AR-15 and a Kevlar vest might deserve the same level of protection as a Winchester rifle and the Brown Bess. On the other hand, a newly invented ray gun might not at all.
The third category of cases—those that ask when and where the Second Amendment right may be exercised—is more amenable to the tiered approach. If the Second Amendment is treated as a second-class right, the same cannot be said for the First Amendment. Yet the tiered approach abounds in free speech cases. For example, time, place, and manner restrictions on the exercise of speech are analyzed under intermediate scrutiny. Should the approach not apply to waiting periods and gun-free zones?
If this is correct, then a Second Amendment case might employ both approaches to resolve the issues. A case asking whether an immigrant has a Second Amendment right would use the “text, history, and tradition” approach; a case asking whether a 16-year-old must wait 35 days before acquiring a submachinegun would use both the categorical approach and tiered analysis. Simple cases present binary choices while complicated ones require a hybrid touch.
The applications of Heller by the lower courts have elicited several dissents from denials of certiorari by Justice Thomas, who has proclaimed “the Second Amendment [to be] a disfavored right.” Justice Kavanaugh has shared those same concerns. The pending case of New York State Rifle & Pistol Association Inc. v. Bruen affords an opportunity for the Supreme Court to provide clarity and direction for the lower courts.
In Bruen may lie a light at the end of the tunnel for gun rights advocates. But the brightness of the light will depend on whether the lower courts will have room to maneuver within the confines of the case law and do to Bruen what they have effectively done to Heller.
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