"Second Amendment Standards of Review in a Heller World" (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2022011 )
Fordham Urban Law Journal, Forthcoming (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=214668 )
George Mason Law & Economics Research Paper No. 12-32 (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=215053 )
NELSON LUND (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=268166 ), George
Mason University School of Law
Email: [email protected]
In District of Columbia v. Heller, the Supreme Court recognized the
Second Amendment right of individuals to keep and bear arms, and struck
down a ban on civilian possession of handguns. The lower courts have
since confronted numerous challenges to less restrictive regulations,
many of which have required judges to conjure guidance from the highly
enigmatic Heller opinion.
Surprisingly, perhaps, the federal courts of appeals have quickly
reached a consensus about the proper analytical framework to apply. That
framework draws heavily on a tiers-of-scrutiny approach borrowed largely
from the Supreme Court’s First Amendment jurisprudence. In a recent case
from the D.C. Circuit, Judge Brett Kavanaugh’s dissenting opinion
mounted a fundamental challenge to this framework. Judge Kavanaugh
argues that the consensus framework was rejected in Heller, and that
courts have been instructed to use a different approach based on
American history and tradition.
This article maintains that Heller did not dictate the approach
proposed in Judge Kavanaugh’s dissent, and that his approach is
unworkable. The consensus approach taken by the D.C. Circuit is
preferable to Kavanaugh’s, but it was misapplied by the majority. The
best approach is exemplified in a Seventh Circuit opinion written by
Judge Diane Sykes, who provided an unusually intelligent interpretation
of Heller and displayed an appropriate respect for the constitutional
right at stake in Second Amendment litigation.
****************************************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037)
f- 651-523-2236
St. Paul, MN 55113-1235
c- 612-865-7956
[email protected]
http://law.hamline.edu/constitutional_law/joseph_olson.html
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