Academic

Habib on Gun Control After Heller & McDonald

By Lawrence Solum

Michael J. Habib (University of Connecticut - School of Law) has posted ?I?ll Give You My Gun When You Take it from My Cold, Dead Hands!? The Future of Gun Control Laws Post-McDonald and Heller and the Death of One-Gun-Per-Month Legislation on SSRN. Here is the abstract:

For over 200 years, the Supreme Court has taken myriad opportunities to define, refine, and elucidate those rights guaranteed by the Constitution. The Court has also strained to balance important government interests against the rights of the people by creating and applying the levels of scrutiny. For almost every right protected by the Constitution, and made applicable to state government through the process of selective incorporation, the state and federal governments have sought to limit and restrict the exercise of those rights in order to further some government interest.

While many rights have been incorporated against the states over the past eighty-five years, the Second Amendment right to bear arms is the most recent addition to that family. Like many rights that are newly incorporated, Second Amendment jurisprudence is in its infancy, and will continue to evolve throughout the years to come. Some of the questions left unanswered by the Heller and McDonald decisions include: What exactly is the right protected by the Second Amendment? To what degree, and for what purposes, may the government (state and federal) abridge the right to bear arms? And, what is the proper level of scrutiny for assessing the constitutionality of laws that impinge the right to bear arms?

By means of a thorough and comprehensive evaluation and interpretation of the majority, concurring, and dissenting opinions in Heller and McDonald, I conclude that the right to bear arms is a historical right that pre-dates the Constitution, and the Second Amendment was a means to guarantee that right would be secured for future generations of Americans. Like the pre-independence colonists, Americans today are guaranteed a right to bear arms that extends well beyond a collective right vis-à-vis a well-regulated militia or simply a right to possess a firearm for self-defense. Instead, the right enshrined in and protected by the Second Amendment is a right to purchase, own, and carry almost any commonly available weapon, in almost any locale, and for almost any purpose.

Of course, like every other fundamental constitutional right, it is not unlimited and unqualified. The Heller and McDonald Court was abundantly clear that some, reasonable government regulation of and restrictions on the right to bear arms are appropriate and necessary. The government has a compelling interest in protecting the safety and security of the free state, and in exercising that right may restrict the sale of certain firearms to minors, convicted felons, and the mentally ill, and the government may entirely prohibit the sale, possession, and use of certain arms used specifically for military purposes. The government may also establish criteria for citizens wishing to exercise their Second Amendment right, including licensing schemes that requiring training, safety examinations, and licensing by state officials.

However, the extent to which the government may restrict the right to bear arms is a question the Court conspicuously left unanswered, giving no guidance to aid future courts in assessing the constitutionality of laws that restrict the right to bear arms. Traditionally, such guidance is found in the level of scrutiny assigned to the right, which establishes how weighty the government?s interest must be to constitutionally restrict a fundamental right. Because of the nature of the right to bear arms, a fundamental right that uniquely implicates the government?s public safety and security interests in a manner unseen in any other constitutional right, I proffer that the Court must invoke a little-defined and rarely applied modus operandi of judicial scrutiny that I have called a sliding-scale level of review. Under the sliding-scale scrutiny, courts must assess the constitutionality of a regulatory scheme restricting the right to bear arms in light of the effect it has on the exercise of the core right. The Supreme Court has identified the right of self-defense as the central component of the right to bear arms, and any regulation that infringes on a citizen?s right of self-defense must be reviewed with the highest degree of suspicion and thus subjected to the most stringent level of scrutiny, strict scrutiny. Conversely, when a regulation does not touch upon the core principles of the right to bear arms, but instead merely restricts the penumbras of the right, such regulations should be granted more deference with regard to the government?s important interests, warranting a lesser level of scrutiny.

Full post as published by Legal Theory Blog on January 20, 2011 (boomark / email).