Two new student notes were recently published in their law reviews’ November issues. These articles add important insights to highly relevant areas of Second Amendment law that are still very much in flux. Check them out below with their abstracts excerpted.
Like the First, Fourth, Fifth, and Fourteenth Amendments, the Second Amendment stirs fervent debate among legal academics and the American public. Unlike these Amendments, however, the Second Amendment has received very little treatment from the Supreme Court until recently. In District of Columbia v Heller, the Court established that the “right of the people to keep and bear Arms” includes the right to bear arms for self-defense. Without further guidance from the Court, lower courts have struggled to consistently and uniformly determine when the Constitution permits gun regulations in spite of the Second Amendment.
To provide clarity, this Comment offers a new framework for analyzing Second Amendment cases by drawing upon the First Amendment, a close cousin of the Second Amendment. In particular, courts should evaluate gun regulations by determining the value of the underlying regulated gun, similar to how courts ascertain the value of certain speech in the free speech context. The salient question for guns is: To what extent does the gun further the self-defense purpose announced by the Supreme Court? To make this determination, this Comment proposes a set of objective factors—including a gun’s close-range capabilities, compactness, collateral damage risk, and the ease with which it can be wielded—thus cordoning off the shortcomings of the First Amendment’s arguably subjective framework. After explaining how free speech jurisprudence offers useful lessons for Second Amendment analysis, this Comment applies that approach to a nascent issue percolating among lower courts: whether the Second Amendment includes a right to sell a firearm.
The U.S. Supreme Court’s landmark decision in District of Columbia v. Heller held that the prohibition of handguns in the home was unconstitutional and the Court extended this holding to the states through the Fourteenth Amendment in McDonald v. City of Chicago. Through these cases, the Court clarified that the core of the Second Amendment was self-defense. However, it did not specify the scope of this self-defense “core” and left the lower courts with room for interpretation—for example, it is unclear whether and to what extent the Second Amendment applies to the public space. Furthermore, the Supreme Court did not provide a standard of review for lower courts to apply when weighing the constitutionality of gun regulations. Lastly, while the Court relied heavily on the nation’s history to justify its holding in Heller, it did not give any further guidance regarding the sources of history that the Court deemed most reliable.
Given these ambiguities, states have implemented statutes that require law-abiding citizens interested in obtaining a handgun license for concealed public carry to articulate a specified need for self-defense. Lower courts had generally accepted such provisions as constitutional until the D.C. Circuit in Wrenn v. District of Columbia held otherwise.
This Note analyzes the constitutionality of these provisions. It attempts to clarify some of the Supreme Court’s ambiguities through its analysis and ultimately proposes that these state statutes are constitutional.