Second Amendment

Question 1

Minimalist Interpretation of Second Amendment

Answer 1

Simply put this interpretation holds that the Second Amendment protects the armed state of the Militia from the Federal Govt. (I.e., would protect the national guard from disarmament).
- Not favored by the Supreme Court -

Question 2

Broader View of 2A

Answer 2

People in general should have the right to bear arms.

Question 3

Textual Origin of 2A

Answer 3

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The latter part about keeping and bearing arms is the operative clause.

Question 4

Heller v. District of Columbia (2008)

Answer 4

The first case in which the Supreme Court held that the Second Amendment did not limit the protections of gun-bearing to militias. Especially handguns. When you have a trustworthy adult who wants to keep a firearm in the home for self defense, doing so is protected under 2A.

However, the rationale of Heller is weakened by the fact that it can be equated to the Roe v. Wade of Conservative judges as “it requires judges to become advocates and essentially take upon themselves policymaking to sort out the extent of the Second Amendment.”

Question 5

McDonald v. Chicago (2010)

Answer 5

Brought Second Amendment protections to the states through incorporation.

Question 6

Lower Courts’ Pre-Bruen Two-Step Test on Second Amendment Protection

Answer 6

Two-Step Test on Second Amendment Protection:
Step One:
At the first step, the government may justify its regulation by “establishing that the challenged law regulates activity falling outside the scope of the right as originally understood.” Based on the Second Amendment Text’s historical meaning. If the regulation falls within the scope of the Second Amendment then the Court offers protection. Especially in cases of confrontation.

Step Two:
At the second step, the Court must analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”

SoR Depends on Step Two:
If a “core” Second Amendment right is burdened, courts apply “strict scrutiny” and ask whether the Government can prove that the law is “narrowly tailored to achieve a compelling governmental interest.” (Normally, only applicable if relates to the right to own a gun at Home.)

Otherwise, apply intermediate scrutiny and consider whether the Government can show that the regulation is “substantially related to the achievement of an important governmental interest.”

Question 7

N.Y. State Rifle & Pistol Ass’n v. Bruen (2022)

Answer 7

The issue was around the constitutionality of a may-issue regime in place by NY. 7 states were “may-issue” as opposed to “shall issue” or Constitutional Carry (permitless).

NY had a “special need” requirement that often led to only people who had connections or rich or social status getting permits. Even living in a dangerous neighborhood wasn’t enough. NRA used litigation campaign aimed at SCOTUS but also state-level strict scrutiny amendments (to make it harder for judges to let state statutes restrict gun rights).

Bruen adopts only the first part of the two-prong Heller Test, i.e., a text-in-history test to determine if the Government previously regulated that issue. The SoR of Bruen is HISTORY. This scrapped the “means-end” relationship created by the lower courts and said that Heller and McDonald don’t support applying that in the 2A context. Functionally stricter than strict scrutiny, because if history goes against the gov, it does not matter if the gun law is still narrowly tailored to achieve a compelling purpose. This is at the federal level. Individual states often pursue strict scrutiny amendments.

History Depends on Ratification Timing (note that this is still debated):
Federal Application - You might look at the tradition at the time of the 2A ratification.
State Application - You might look at the tradition at the time of the 2A or 14A ratification. This part is still debated.

What should a judge look for in the historical statutes? Threats and weapons have changed over time. Majority thinks history will be more objective.

Critique: Deprives the legislature from its role of determining how to protect citizens. History may end up being a more messy and subjective test than means-end as well.