United States V. Reese and Post-Heller Second Amendment Interpretation

I. INTRODUCTION In United States v. Reese, the Tenth Circuit ruled that 18 U.S.C. § 922(g)(8) (2006), a statute prohibiting an individual subject to a domestic protection order from possessing any type of firearm, was constitutional.1 In coming to this conclusion, the court determined that § 922(g)(8) was subject to intermediate scrutiny, meaning the government had the burden of showing it had an important objective that was advanced by means substantially related to the objective.2 The court's rationale behind applying intermediate scrutiny was based on its interpretation of the Supreme Court's decision in District of Columbia v. Hellet* and is supported by other circuits.4 Despite intercircuit support for intermediate scrutiny and a twostep analysis in Second Amendment cases, the method is not followed uniformly, and there are questions as to whether the approach is actually supported by the Supreme Court's decision in Heller. In a challenge to the developing intermediate scrutiny standard, Judge Kavanaugh on the D.C. Circuit recently wrote a dissenting opinion asserting that the Supreme Court rejected application of balancing tests in Second Amendment challenges.5 According to Judge Kavanaugh, the Supreme Court created a framework for reviewing Second Amendment questions with a categorical test built on text, history, and tradition. This Note compares the reasoning of the courts that applied intermediate scrutiny with the reasoning in Judge Kavanaugh's dissent and concludes that the Supreme Court's decision in Heller can be read to support either view. Because judicial balancing is commonplace in constitutional interpretation and pure categoricalism is rare, the Court will have to be more clear than it was in Heller if it wishes to establish a categorical approach to evaluating Second Amendment laws. Part II of this Note reviews developing Second Amendment jurisprudence by looking at the Supreme Court's decision in Heller and how circuit courts have interpreted it. Part III looks at the Tenth Circuit's decision in United States v. Reese. Part IV examines Judge Kavanaugh's interpretation of Heller, which contradicts the one adopted by most circuits. Part V considers the battle between categoricalism and balancing that appears to have arisen in Second Amendment jurisprudence. Part VI concludes. II. A BRIEF INTRODUCTION TO HELLER AND ITS PROGENY In Heller, the Supreme Court held that the Second Amendment recognizes "the individual right to possess and carry weapons."6 Specifically, the Court held that a District of Columbia statute that banned handgun possession in the home and prohibited "rendering any lawful firearm in the home operable for the purpose of immediate self-defense" violated the Second Amendment.7 Notwithstanding this holding, the Court noted that the Second Amendment does not establish an unlimited right: Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. In determining the constitutionality of statutes that restrict enumerated constitutional rights, the Court has historically applied differing levels of scrutiny.9 While the Heller court definitively held that rational-basis scrutiny is insufficient for assessing infringements of an enumerated right like the right to keep and bear arms,10 the Court did not specifically endorse the application of either intermediate or strict scrutiny for evaluating Second Amendment legislation. Instead it explained that "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, [the statute in question] would fail constitutional muster. …