Forecasting the Future of Heller

Of the many questions that the Supreme Court’s first thorough analysis of the Second Amendment in over 50 years raises, one of the most interesting is the interplay between the scope of review to be applied in future challenges of gun regulations, and the prospect of incorporating the newly established individual right to keep and bear arms against the states. The Court in D.C. v. Heller last week held that the Second Amendment protects an individual’s right to keep and bear arms apart from any connection to a militia. What we do know from Heller is that an outright ban on keeping a gun at home for the purposes of immediate self defense violates the Second Amendment. We also know that federal regulations which prohibit a convicted felon or the mentally ill from owning a gun are likely constitutional. What we don’t know, is where, within these two extremes, the Second Amendment draws the line between reasonable regulation and impermissible infringement on an individual right. Unfortunately, the Court chose not to present us with a standard of review for the many challenges to gun regulations that are to come. (Challenges have already been filed in San Francisco and Chicago.)

Many commentators have quickly brushed aside the next step of incorporation as inevitable. Yet, no where in the decision does the Court hint at incorporation, nor does the court classify the individual right to keep and bear arms as “fundamental”. Fundamental rights are incorporated through the Fourteenth Amendment to apply against the states- the fundamental right to free speech and the freedom from unreasonable search and seizure for example. (See e.g. Duncan v Louisiana: defining the standard for incorporation as those “fundamental principles of liberty and justice.” Additionally, fundamental rights receive the vast protections of strict scrutiny analysis when statutes infringing on the right are challenged, i.e. the statute must be necessary to achieve a compelling government interest.

If the individual right to keep and bear arms is a fundamental right, as many think it is, than the Second Amendment will surely be selectively incorporated to apply against the states AND, in accordance with other fundamental rights, receive the protections of strict scrutiny. If this is the case, the inevitable upcoming challenges to state and federal gun regulations across the country should be largely successful. Very few statutes can survive the strict scrutiny analysis which has a reputation for being “strict in theory, but fatal in fact.” While Justice Scalia made clear that most licensing requirements probably do not violate the Second Amendment, what will be the fate of more substantive regulations on the possession of weapons?

If the individual right to bear arms is not a fundamental right, and is instead categorized as some lesser protected right, incorporation is not so certain. The right to bear arms is unlike many of the other procedural rights that the courts have incorporated through the due process clause of the 14^th Amendment. Rights that have previously been incorporated tend to pertain to the individuals relationship with government, many procedural rights for example. Perhaps the best analogy for the right to a gun is to the right to speak freely, but even so, freedom of speech has been characterized as a fundamental right. If not classified as a fundamental right, courts must answer the incorporation question of whether a state law regulating gun possession deprives an individual of life, liberty, or property, without due process of law? Yet, if the Second Amendment is not incorporated the decision in Heller will be entirely eviscerated, because most gun regulations are state or municipal laws. These laws would remain untouched by an unincorporated Second Amendment.

Heller holds that the Second Amendment protects an individual right to a gun unconnected to membership in a militia. It will take another round of litigation to ascertain the true character of this newly protected, but always existing, right. If the right is fundamental it will be incorporated and should receive strict scrutiny, if this is the case state gun laws will fall. If the right is not fundamental, and is potentially not incorporated, the decision will only affect federal laws, and even then the effect will be limited as most federal gun laws pertain only to the sale and transport of weapons. Heller will either mean everything (fundamental and incorporated) or nothing (lesser right and unincorporated), or as usual….something in between. Perhaps the most likely outcome, unfortunately, will be the evolution of a complicated and ambiguous Second Amendment jurisprudence consisting of various tiers of protection much like we see in today’s free speech analysis.

District of Columbia v. Heller

Posted by Todd Garvey