Legal Commentary

DC v. Heller will be the first Supreme Court decision on the Second Amendment in nearly 70 years, so it has naturally drawn much attention. Most of the discussion has centered on what we might term the "primary" question at issue in the case: does the Second Amendment protect an individual right to bear arms or just protect state militias from federal interference? Thanks to the ambiguous language and history of the Second Amendment ("A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed"), the very identity of the substantive right has remained unclear.

I want to call attention to what seems like a secondary question raised by Heller, but which in fact may turn out to be far more consequential: what standard of review applies to laws infringing on Second Amendment rights? Assume, as I do, that a majority on the Court determines that there is an individual right to bear arms unrelated to militia service. No right is absolute, the Court often reminds us, so the test or standard adopted to adjudicate challenged laws becomes pivotal. If the Court adopts a strict scrutiny-type of standard, many gun control measures will likely be invalidated. If, however, a lower standard applies, more gun control measures are likely to be upheld.

What standard should apply to law burdening an individual right to bear arms? My view is that the Court should follow the experts: the state courts. This very question has been asked and answered dozens of times in state courts applying state constitutional provisions. Forty-two states have constitutional protections for the individual right to bear arms and the state courts have authored hundreds of opinions deciding the constitutionality of burdens on the right. Every state, without exception, applies a "reasonable regulation" standard, equivalent in effect to rational basis review. No state applies strict scrutiny or any other form of heightened review.