Second Amendment Challenges to Firearms Regulations Post-Heller
Released: 2013-04-04T00:00:00

Introduction

In 2008, the U.S. Supreme Court decided District of Columbia v. Heller , in which the Court held that the Second Amendment to the U.S. Constitution protects an individual right to possess a firearm, unconnected with service in a militia, and the use of that firearm for traditionally lawful purposes, such as self-defense within the home. Shortly afterward in McDonald v. City of Chicago , the Supreme Court held that the Second Amendment also applies to the states, but it did not further explore the scope of the Second Amendment. Although Heller did not constitute "an exhaustive historical analysis ... of the full scope of the Second Amendment," the Court noted that its decision "does not imperil every law regulating firearms," and "[does] not cast doubt [] on longstanding regulatory measures [such] as 'prohibitions on the possession of firearms by felons and the mentally ill,' '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.'" Since Heller and McDonald , both federal and state firearms laws have been regularly challenged under the Second Amendment.

This report first discusses the standard of judicial review that the lower courts generally have fashioned to determine if a firearm law is in violation of the Second Amendment. Next, the report examines select categories of firearms laws that have been challenged under the Second Amendment. These include (1) prohibitions on certain persons based on age and on criminal history; (2) state concealed carry laws; and (3) state and local assault weapons bans. An examination of these categories could provide some insight as to how courts might assess future firearms legislation on Second Amendment grounds.

In the 113 th Congress, several gun control proposals have been introduced. These include, among others, measures that would ban certain assault weapons and prohibit possession of large capacity magazines (e.g., S. 150 / H.R. 437 / S. 33 ); and measures that would require background checks on private transfers of firearms or ammunition (e.g., S. 22 / S. 174 / S. 374 / H.R. 141 ).

What Standard of Judicial Scrutiny Should Be Applied?

A significant question left open by the Court in Heller centers on the standard of scrutiny that should be applied to laws regulating the possession and use of firearms. Generally, there are three levels of judicial scrutiny. First, strict scrutiny, the most rigorous, requires a statute to be narrowly tailored to serve a compelling state interest. Second, intermediate scrutiny, requires a statute to further a government interest in a way that is substantially related to that interest. Third, the rational basis standard merely requires the statute to be rationally related to a legitimate government function. The Court in Heller rejected the rational basis test and also explicitly rejected Justice Breyer's "interest-balancing" inquiry, distinguishing this "judge-empowering" approach from the "traditionally expressed levels" of scrutiny. However, the Court did not establish or clearly apply any judicial standard, declaring instead that the challenged firearms provisions were unconstitutional "[u]nder any of the standards of scrutiny that [the Court has] applied to enumerated constitutional rights."

Lower Court Approaches to the Second Amendment After Heller

After Heller , some lower courts seemingly did not perform an extensive analysis or apply a particular standard of scrutiny in determining that a challenged federal firearms law was valid under the Second Amendment. Rather, they analogized the challenged firearms provisions to those listed as "presumptively lawful" in Heller and found them to be constitutional. Under this approach, courts have upheld bans on possession by felons, by substance abusers, by illegal aliens, and by people convicted of domestic violence. Interestingly, some of these categories, as well as those not listed in the Court's dicta as "presumptively lawful regulatory measures," are not necessarily "longstanding," as they were enacted in the 20 th century. As touched upon below, courts have wrestled with how to interpret and incorporate the "presumptively lawful" language from Heller with an analytical framework that involves application of means-end scrutiny.

However, the U.S. Court of Appeals for the Third Circuit (Third Circuit), in United States v. Marzzarella , attempted to establish a framework for how to evaluate firearms laws that did not fall within those identified as "presumptively lawful." The statute at issue in Marzzarella was 18 U.S.C. Section 922(k), which is the federal ban on the possession of unmarked firearms. In the Third Circuit's view, there are two possibilities of how the "presumptively lawful" categories are to be treated. The first possibility is that these types of firearms regulations could be those which regulate "conduct outside the scope of the Second Amendment," meaning that they would not be subject to any heightened judiciary scrutiny. Or, the language "may suggest the restrictions are presumptively lawful because they pass muster under any standard of scrutiny." The Third Circuit favored its first interpretation, finding it more consistent based on the text and structure of the Heller decision.

With this view, the Third Circuit noted that Heller suggested a two-step approach: "First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee (citations omitted). If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under the standard, it is constitutional. If it fails, it is invalid."

With respect to scope, the Court in Heller seemed to indicate that the "core" Second Amendment right protects "the right of law-abiding citizens to possess non-dangerous weapons for self-defense in the home." It is less clear, however, the types of regulation that might burden conduct protected by the Second Amendment. The defendant, Marzzarella, argued that firearms without serial numbers must come within the scope of the Second Amendment because firearms in common use in 1791 did not have serial numbers. The Third Circuit rejected this because it found that "it would make little sense to categorically protect a class of weapons [under the Second Amendment] bearing a certain characteristic wholly unrelated to their utility." The court was further skeptical of the defendant's argument that "possession in the home is conclusive proof that §922(k) regulates protected conduct [under the Second Amendment]." Due to a lack of historical evidence, however, the court could not conclude with certainty that the Second Amendment did not protect possession of unmarked firearms in the home.

The Third Circuit, therefore, proceeded to assume that the federal ban burdened the defendant's Second Amendment right and examined the law under "some form of means-end scrutiny." Looking to First Amendment jurisprudence for guidance, the court noted that even an enumerated, fundamental right may be subjected to varying levels of scrutiny depending on the circumstances. The court chose to apply an intermediate scrutiny standard to evaluate Section 922(k) finding that, similar to content-neutral time, place, and manner restrictions on speech, the firearms provision also regulated the manner in which persons could lawfully exercise their Second Amendment rights. Although the intermediate scrutiny standard in the First Amendment context is articulated in different ways, "[t]hey all require the asserted governmental end to be more than just legitimate, either 'significant,' 'substantial,' or 'important," and require "the fit between the challenged regulation and the asserted objective be reasonable, not perfect." With respect to Section 922(k), the Third Circuit held that the statute passes muster under intermediate scrutiny because it does not "severely limit the possession of firearms," and reasonably fits to achieve the government's substantial and important interest in preserving serial numbers for tracing purposes.

As discussed below, many courts generally have employed the Third Circuit's two-part inquiry when determining if a challenged federal or state firearms provision violates the Second Amendment, including those the Court in Heller determined to be presumptively lawful.

Are Certain Individuals Not Protected by the Second Amendment?

Both federal and state laws have long prohibited certain categories of individuals from possessing firearms. Congress enacted the Gun Control Act of 1968 (GCA or Act) to "keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, and to assist law enforcement authorities in the states and their subdivisions in combating the increasing prevalence of crime in the United States." The GCA establishes a comprehensive statutory scheme that regulates the manufacture, sale, transfer, and possession of firearms and ammunition. For instance, the GCA prohibits federal firearms licensees (or licensed dealers) from selling handguns to any person under the age of 21 and long guns (i.e., rifles and shotguns) to any person under the age of 18.

Licensed dealers are also subject to several requirements designed to ensure that a firearm is not transferred to an individual disqualified from possession under the act. Under federal law there are nine categories of persons who prohibited from possessing, receiving, or transferring a firearm. The individuals targeted by this provision include (1) persons convicted of a crime punishable by a term of imprisonment exceeding one year; (2) fugitives from justice; (3) individuals who are unlawful users or addicts of any controlled substance; (4) persons legally determined to be mentally defective, or who have been committed to a mental institution; (5) aliens illegally or unlawfully in the United States, as well as those who have been admitted pursuant to a nonimmigrant visa; (6) individuals who have been discharged dishonorably from the Armed Forces; (7) persons who have renounced United States citizenship; (8) individuals subject to a pertinent court order; and, finally, (9) persons who have been convicted of a misdemeanor domestic violence offense.

The following section reviews judicial decisions that have evaluated the constitutionality of the federal age requirement to purchase firearms, as well as the federal prohibition on misdemeanants of domestic violence from possessing firearms. While these and other categorical restrictions on certain individuals can be likened to the long-standing, presumptively lawful regulatory measures identified in Heller , reviewing courts have generally employed the two-step inquiry fashioned in Marzzarella .

Federal Age Requirement

Section 922(b)(1) of title 18 prevents licensed dealers from selling handguns to any individual under the age of 21 and long guns to any individual under the age of 18. The constitutionality of this law and its attendant regulations were challenged for violating "the right of 18-to-20-year-old adults to keep and bear arms under the Second Amendment" in Nat'l Rifle Assoc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives . The U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) adopted the two-step approach from Marzzarella . To determine if the law burdens protected conduct as historically understood, the Fifth Circuit relied on a "wide array of interpretive materials to conduct a historical analysis" to determine if the "law harmonizes with the historical traditions associated with the Second Amendment guarantee." After reviewing both founding-era attitudes toward gun restrictions on certain groups, as well as the laws and jurisprudence of the 19 th century, the Fifth Circuit concluded "the present ban is consistent with a longstanding tradition of targeting select groups' ability to access and to use arms for the sake of public safety." The court believed that the first step of the inquiry was satisfied, such that the regulation did not burden conduct protected by the Second Amendment, given the "considerable historical evidence of age- and safety- based restrictions on the ability to access arms."

However, in "an abundance of caution," the Fifth Circuit proceeded to analyze the federal law under intermediate scrutiny (the second step) primarily due to two factors. First, the age restriction is similar to the other "longstanding, presumptively lawful bans on possession by felons and the mentally ill" identified in Heller ; second, the prohibition does not "disarm an entire community" like the D.C. ban in Heller . In applying intermediate scrutiny, the court concluded that the government satisfied its burden of demonstrating that Congress "deliberately adopted a calibrated, compromise approach" to achieve an important government interest.

Misdemeanants of Domestic Violence

The following two cases demonstrate the federal appellate courts' treatment of the GCA provision that prohibits misdemeanants of domestic violence from possessing or transporting firearms. Notably, this provision—codified at 18 U.S.C. Section 922(g)(9)—was enacted into law in 1996.

The U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) in United States v. Skoien ( Skoien I ) vacated and remanded for further proceedings a defendant's conviction under 18 U.S.C. Section 922(g)(9). The court noted the limiting language in Heller regarding presumptively lawful measures and declared it "would be a mistake to uphold this or other gun laws simply by invoking the Court's reference to these ... measures ... without more." The court favored an analytical framework not unlike the two-step approach from Marz za rella . It stated: "[C]onstitutional text and history come first, then (if necessary) an analysis of the public-benefits justification for the regulation follows.... If the first inquiry into the founding-era scope of the right doesn't resolve the case, then the second inquiry into the law's contemporary means-end justification is required." The court moved to evaluate the prohibition under means-end scrutiny, given that the first inquiry did not resolve whether an individual who falls under Section 922(g)(9) is "categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions." Consequently, it applied intermediate scrutiny because the challenged provision "is several steps removed from the core constitutional right identified in Heller ." This is not to say that "domestic-violence misdemeanants have no Second Amendment rights, but it does support the application of a more lenient standard of review." However, the Seventh Circuit in Skoien I vacated the charges against the defendant because the government "made little effort to discharge its burden of demonstrating the relationship between §922(g)(9)'s means and its end" and instead "rested nearly its entire case on Heller 's reference to felon-dispossession laws, asserting, without analysis, that 'Congress permissibly concluded that a narrow additional range of serious criminal offenses should likewise result in the forfeiture of the right to possess a firearm, even though the offenses are defined as misdemeanors under applicable law.'" Because the government did not carry its burden of establishing a reasonable fit between the important objective of reducing domestic gun violence and Section 922(g)(9)'s permanent disarmament of all domestic-violence misdemeanants, the court vacated the defendant's charges but gave the government time to make its case.

Upon rehearing, the Seventh Circuit, sitting en banc, resisted delving "more deeply into the 'levels of scrutiny' quagmire." It rejected the Second Amendment challenge to 18 U.S.C. Section 922(g)(9) on the basis that the government apparently met its burden by demonstrating that "logic and data establish a substantial relation between §922(g)(9) and [an important governmental] objective."

In United States v. Chester , the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) issued a decision to provide district courts in its circuit guidance on the framework for deciding Second Amendment challenges. The Fourth Circuit followed the two-step approach delineated in Marzzarella : first, a historical inquiry "seek[ing] to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification;" and second, if the regulation burdens conduct within the scope of the Second Amendment as historically understood, "... mov[ing] up to the second step of applying the appropriate form of means-end scrutiny."

The Fourth Circuit remanded the case to the district court but noted that, under the first prong, Section 922(g)(9)—like the GCA provision prohibiting convicted felons from possession—should be evaluated based on whether a person, rather than a person's conduct, is unprotected by the Second Amendment, and that "the historical data is not conclusive on the question of whether the Founding era understanding was that the Second Amendment did not apply to felons." Thus, as in Marzzarella , the Fourth Circuit assumed, due to a lack of historical evidence, that the defendant was entitled to some Second Amendment protection to keep and possess firearms in his home for self-defense. For this defendant and other similarly situated persons, the court declared that the government, upon remand, must meet the intermediate scrutiny standard and not strict scrutiny, because the defendant's claim "was not within the 'core right' identified in Heller —the right of a law-abiding , responsible citizen to possess and carry a weapon for self-defense—by virtue of [the defendant's] criminal history as a domestic violence misdemeanant." Upon remand, the government presented empirical evidence to support its contention that the ban on misdemeanants of domestic violence is a reasonable fit in achieving the important government objective at stake, namely decreasing firearm use in domestic violence incidents. The U.S. District Court for the Southern District of West Virginia upheld the statute, concluding the government demonstrated a reasonable fit between the statute and the substantial governmental objective at stake.

These decisions indicate there may be variation with respect to how courts apply the two-step inquiry to assess whether a class of persons is entitled to protection under Second Amendment. As seen above, the Fifth Circuit did not find it necessary to its holding to analyze the federal age requirement under the second prong of the two-step analysis, because it concluded that historical evidence indicated individuals under a certain age are not entitled Second Amendment protection. The Fourth Circuit in Chester , on the other hand, could not determine if domestic violence misdemeanants are entitled to protection under the Second Amendment as historically understood, and therefore, it assumed they were protected, stating that application of intermediate scrutiny under the second prong would be appropriate upon remand. When faced with a Second Amendment challenge to prohibition on a category of persons that does not have a historical basis, it seems that a reviewing court will proceed with analysis of a regulation under a heightened means-end scrutiny and place even more emphasis on the responsibility of the government to meet its burden under intermediate scrutiny.

Does the Second Amendment Extend Beyond the Home?

Traditionally, states have regulated concealed carrying of firearms and generally, they are categorized as either "shall-issue" or "may-issue" states. Among these states, some issue permits only to residents, while others issue permits to both residents and non-residents. In "shall-issue" jurisdictions, the issuing authority is required to grant the applicant a concealed carry permit (CCP) if he or she meets the statutory requirements. In "may-issue" jurisdictions, the issuing authority generally has the discretion to grant or deny a CCP based on a variety of statutory factors. Furthermore, each state decides which out-of-state permits to recognize. Since Heller , several states' concealed carry laws have been challenged under the Second Amendment. For the most part, challenged concealed carry laws have been those in may-issue states that require an applicant to show good or proper cause in order to be eligible for a CCP.

Both Heller and McDonald emphasized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller also indicated that mere regulation of a right would not sufficiently infringe upon, or burden, the Second Amendment right, when it pointed out that certain colonial-era ordinances did not "remotely burden the right of self-defense as much as an absolute ban on handguns." In other words, it appears that to be burdensome, a regulation must also substantially infringe on the self-defensive right. Notably, Heller declared that the pre-ratified Second Amendment right was "understood to be an individual right protecting against both public and private violence," perhaps suggesting that the Second Amendment right extends beyond the home. Yet the Court listed measures that forbid the carrying of firearms in sensitive places as presumptively lawful, perhaps suggesting that these are the types of regulatory measures excepted from the Second Amendment.

Therefore, with respect to concealed carry laws, courts have been confronted with determining whether the Second Amendment's protections extend beyond the home and, if so, whether concealed carry laws substantially burden the right of self-defense. Not surprisingly, courts have evaluated the challenged provisions differently, given the nuances of each state's concealed carry provisions. The following decisions indicate how reviewing courts have evaluated the constitutionality of concealed carry laws, and thus, how courts may assess future challenges to these laws.

For example, in Peruta v. County of San Diego , the U.S. District Court for the Southern District of California turned to the text and structure of Heller to determine whether California's concealed carry laws burden the Second Amendment. The court determined that the law, which requires an applicant for a CCP to be a resident and demonstrate "good cause," does not violate the Second Amendment. Although the court raised the issue whether the Second Amendment right as delineated in Heller extends to the right to carry a loaded handgun in public, either openly or concealed, the court concluded it did not need to decide the issue. It found California's CCP scheme similar to the 19 th century cases cited in Heller that upheld state prohibitions on carrying concealed weapons because alternative forms of carrying arms were available. To the extent that California's concealed carry scheme burdened the Second Amendment, the court declared this burden mitigated by California's open carry provisions, which, although generally restrictive, permit the open carry of a loaded firearm under certain circumstances for immediate self-defense. The court also concluded that California's concealed carry measure passes muster under intermediate scrutiny. Similarly, in Williams v. Maryland , the Maryland Court of Appeals upheld the state provision which prohibits the wearing, carrying, or transporting of a handgun openly or concealed without a permit. The court reached this conclusion on the basis that the general ban on carrying a firearm includes an exception for home possession of a handgun without obtaining a permit. According to the court, the exception for the home "takes the statutory scheme outside the scope of the Second Amendment, as articulated in Heller and McDonald ." This reading is "wholly consistent with Heller's proviso that handguns are 'the most preferred firearm in the nation to keep and use for protection of one's home and family.'"

On the other hand, the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) used a two-step inquiry to analyze Colorado's concealed carry provision. The court, in Peterson v. Martinez , held that the carrying of concealed firearms is not protected by the Second Amendment. The challenger, a resident from the State of Washington, sought review of Colorado's concealed carry law, which only issues CCPs for handguns to residents of the state. After reviewing both early 19 th century decisions and regulations on concealed carry cases, the court concluded that restrictions on concealed carry qualify as long-standing, and therefore fit within the Supreme Court's "presumptively lawful regulatory measures." Moreover, because "the law harmonizes with the historical traditions associated with the Second Amendment guarantee," the challenger's claim "fail[ed] at step one" of the two-step analysis. As such, the Tenth Circuit did not engage in a means-end analysis of the provision.

Other decisions have proceeded to the second prong of the two-step inquiry and have reached opposite conclusions after applying an intermediate scrutiny analysis on substantially similar concealed carry regulations that require an applicant to show proper cause. For instance, the U.S. District Court for the District of Maryland in Woollard v. Sheridan analyzed the requirement in the State of Maryland's statute that an applicant demonstrate "good and substantial reason" in order to obtain a CCP. Although the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) has since reversed the judgment of the court, this report proceeds to review the district court's decision as it could be an approach that other courts may follow. In Woollard I , the district court was mindful of an earlier Fourth Circuit decision that had refrained from concluding whether the scope of the Second Amendment as recognized in Heller applies outside the home . However, the district court in Woollard I found it necessary to conduct this analysis so as to determine if Maryland's restriction on handgun possession burdens any Second Amendment right. The district court concluded that Heller itself suggests the Second Amendment applies beyond the home, when it declared the right applicable to the home where the need "for defense of self, family, and property is most acute." This particular language "suggests that the right also applies in some form 'where that need is not 'most acute.'" The district court also reasoned that the Second Amendment must extend beyond the home because it protects lawful purposes such as hunting and militia training, neither of which are household activities. Having determined that the regulation burdens conduct protected by the Second Amendment, the district court in Woollard I applied intermediate scrutiny and held that the "good and substantial reason" requirement infringes upon the Second Amendment because it is not reasonably adapted to a substantial government interest. Although public safety and crime prevention are considered substantial and compelling governmental interests, the district court found the state's good cause requirement overly broad and that it did nothing to advance the interests of public safety.

In contrast, the U.S. Court of Appeals for the Second Circuit (Second Circuit) in Kachalsky v. County of Westchester upheld the State of New York's law which provides that a license to carry a concealed handgun shall only be issued when "proper cause exists." The Second Circuit also determined that the Second Amendment " must have some application in the very different context of public possession of firearms." Because the regulation places "substantial limits on the ability of law-abiding citizens to possess firearms for self-defense in public," some form of heightened scrutiny is appropriate. The court declared that it made "eminent sense" to apply intermediate scrutiny because the regulation does not touch upon the "core" protection of self-defense in the home. Unlike the Maryland regulation in Woollard I , the Second Circuit decided that the New York proper cause requirement passes muster under intermediate scrutiny. Deferring to the state legislature's policy judgments, the court concluded that rather than forbidding anyone from carrying a handgun in public, New York took "a more moderate approach to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason to possess handguns should be allowed to introduce them into the public sphere."

Are Certain Types of Weapons Not Protected by the Second Amendment?

Courts have employed a mixed approach when evaluating whether the Second Amendment protects certain types of weapons. Unlike other laws that have been scrutinized before the courts, the Supreme Court in Heller briefly addressed whether certain types of weapons would fall outside the protection of the Second Amendment. It declared that the Second Amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." The Court found that its prior 1939 decision in United States v. Miller supported this conclusion. Relying on Miller , the Court acknowledged that this limitation is supported by the "historical tradition of prohibiting the carrying of 'dangerous and unusual weapons'" and that the "sorts of weapons protected were those 'in common use at the time'" because those capable of service in the militia at the time of ratification would have brought "the sorts of lawful weapons that they possessed at home to militia duty."

Since Heller , cases that have evaluated the constitutionality of state assault weapons bans have generally found them to be valid under the Second Amendment. These courts have relied on either, or both, the "common use" language found in Heller and the two-step inquiry set forth in Marzzarella to evaluate bans on assault weapons.

California

In 2009, the California Court of Appeals decided People v. James , which held that possession of an assault weapon in California remains unlawful and is not protected by the Second Amendment. California's Roberti-Roos Assault Weapons Control Act of 1989, like the 1994 federal assault weapons ban, defines "assault weapons" by providing a list of proscribed weapons and through characteristics "which render these weapons more dangerous than ordinary weapons typically possessed by law-abiding citizens for lawful purposes." Relying on Heller 's brief discussion that the Second Amendment does not protect a military weapon, such as an M16 rifle, the court in James declared that the prohibited weapons on the state's list "are not the types of weapons that are typically possessed by law-abiding citizens for lawful purposes such as sport hunting or self-defense; rather these are weapons of war." It concluded that the relevant portion of the act did not prohibit conduct protected by the Second Amendment as defined in Heller and therefore the state was within its ability to prohibit the types of dangerous and unusual weapons an individual can use.

District of Columbia

The District of Columbia amended its firearms regulations after the Heller decision and enacted new firearms regulations including an assault weapons ban that is similar to California's. In 2011, the D.C. Circuit issued its decision in Heller v. District of Columbia ( Heller II ) which upheld the District's ban on certain semiautomatic rifles and large capacity ammunition feeding devices (LCAFD). Under the "common use" factor delineated in Heller , the D.C. Circuit acknowledged that "it was clear enough in the record that certain semi-automatic rifles and magazines holding more than 10 rounds are indeed in 'common use.'" However, the court could not conclude definitely whether the weapons are "commonly used or are useful specifically for self-defense or hunting" such that they "meaningfully affect the right to keep and bear arms." Therefore, the court went on to analyze the bans under the two-step approach to determine their validity under the Second Amendment.

Assuming that the ban impinged on the right protected under Heller (i.e., to possess certain arms for lawful purposes such as individual self-defense or hunting), the court found that such regulations should be reviewed under intermediate scrutiny because the prohibition "does not effectively disarm individuals or substantially affect their ability to defend themselves." Under intermediate scrutiny, the government has the burden of showing that there is a substantial relationship or reasonable "fit" between the regulation and the important governmental interest "in protecting police officers and controlling crime." The D.C. Circuit held that the District carried this burden and that the evidence demonstrated that a ban on both semiautomatic assault rifles and LCAFDs "is likely to promote the Government's interest in crime control in the densely populated urban area that is the District of Columbia."

Illinois—Cook County

In 2012, the Supreme Court of Illinois decided Wilson v. Cook County , a case that evaluated the constitutionality of the Blair Holt Assault Weapons Ban of Cook County, a long-standing ordinance that was amended to similarly reflect provisions of the 1994 Assault Weapons Ban. Among other claims, the plaintiffs argued that the ordinance violates the Second Amendment. With respect to the Second Amendment claim, the court indicated that it would follow the two-step approach similar to the Heller II court. While the court acknowledged that the ordinance banned only a subset of weapons with particular characteristics similar to other jurisdictions, it found that it could not "conclusively say ... that assault weapons as defined in the [o]rdinance categorically fall outside the scope of the rights protected by the [S]econd [A]mendment." The court ultimately remanded the Second Amendment claim to the trial court for further proceedings, because unlike the James and Heller II decisions, the county did not have an opportunity to present evidence to justify the nexus between the ordinance and the governmental interest it seeks to protect.

Summary

These cases demonstrate that courts evaluating various assault weapons bans, and to a limited extent LCAFD bans, have looked to the Heller decision and the general framework that has developed in the lower courts for analyzing claims under the Second Amendment. Based on the Heller decision where the Supreme Court indicated that certain weapons fall outside the protection of the Second Amendment, lower courts have examined whether the prohibited weapons are considered in "common use" or "commonly used" for lawful purposes or "dangerous and unusual." It is uncertain whether, to be protected under the Second Amendment, the weapon must be in "common use" by the people and if so, whether it must be in "common use" for self-defense or hunting; it is likewise uncertain what constitutes "dangerous and unusual." Heller could arguably be taken to indicate that if the prohibited weapons do not meet these criteria then they are not protected by the Second Amendment, in which case no heighted judicial scrutiny would be applied.

As seen above, a reviewing court could evaluate such measures under the two-step inquiry. If the restriction to certain types of firearms and firearms accessories imposes a burden on conduct protected by the Second Amendment, then a heightened level of judicial scrutiny will be applied to determine the ban's constitutionality. Yet how the "common use" and "dangerous and unusual" criteria should be read, if at all, in connection with the two-step approach remains unclear. Neither the James , Heller II , nor Wilson courts appear to have fully explained the connection between the two approaches.

Implications for Future Second Amendment Challenges

Although many firearms laws have been upheld as constitutional, the differences in how courts interpret the text of Heller , insofar as providing some guidance on the scope of the Second Amendment, as well as how they apply the two-step inquiry may impact the burden upon the government to prove its case. For instance, courts have reached different conclusions on how to interpret the language on presumptively lawful restrictions. As noted above, it could be that these presumptively lawful measures are "so ingrained in our understanding of the Second Amendment that there is little doubt that they withstand the applicable level of scrutiny. Alternatively, the right itself can be seen as failing to extend into areas where, historically, limitations were commonplace and well accepted."

While the court in Woollard believed the former reading was correct, the Third Circuit in Marzzarella believed the latter was the correct interpretation for how to treat measures identified as presumptively lawful by the Court in Heller . In each case, the court went on to apply intermediate scrutiny; however, the potential impact in selecting the latter interpretation—i.e., exceptions to the Second Amendment—may mean that as long as a challenged regulation was included among, or analogous to, the provisions noted in Heller , there would be no burden imposed on the government to submit evidence demonstrating that the firearms regulation is a narrow fit to meet a substantial government interest. As such, this interpretation arguably would favor the government, and there could be a greater chance that a firearms regulation would be upheld. In contrast, the alternative interpretation is arguably not as favorable to the government, and a reviewing court could be less likely to uphold the constitutionality of a provision, unless the government is able to provide "meaningful evidence," as some courts have required. Moreover, the interpretation of the presumptively lawful language likely affects how lower courts define the nature of the right conferred by the Second Amendment and thus the level of scrutiny, if any, that should be applied.

Other Tests to Evaluate the Second Amendment

Although the prevailing test to evaluate challenges under the Second Amendment is the two-step inquiry, at least one judge, through dissent, has proposed a different approach. In Heller II , Judge Kavanaugh opined: "In my view, Heller and McDonald leave little doubts that courts are to assess gun bans and regulations based on the text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny." Under this test, he would have found that D.C.'s ban on semiautomatic rifles to be unconstitutional. However, the Second Circuit in Kachalsky seemed to implicitly reject this test. After reviewing the history of concealed carry laws and accompanying jurisprudence, the court stated: "History and tradition do not speak with one voice here. What history demonstrates is that states often disagreed as to the scope of the right to bear arms, whether the right was embodied in a state constitution or the Second Amendment."

Moreover, some parties challenging firearms laws, such as the proper cause requirement for concealed carry, have also started to advocate that the court take a different approach to evaluate gun measures. They suggest applying First Amendment prior restraint doctrine instead of means-end scrutiny. In the First Amendment context, any law that makes "freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Thus far, this argument has been rejected and no court has taken this "quantum leap" of "import[ing] substantive First Amendment principles wholesale into Second Amendment jurisprudence."

Conclusion

Firearms laws, both existing and new, will undoubtedly continue to be challenged under the Second Amendment. The Supreme Court's decision in Heller appears to have provided limited guidance on how to analyze firearms regulations under the Second Amendment. Yet lower courts have fashioned and primarily applied a two-step inquiry, which asks whether the regulated conduct burdens the Second Amendment right, and if so, whether it passes muster under means-end scrutiny. Although several firearms provisions have been upheld, it remains difficult to discern if there is a better understanding of the scope of the Second Amendment outside the "core" right identified in Heller , as courts have evaluated firearms provisions differently under the two-part test. As the post- Heller challenges to firearms provisions continue to percolate through the lower courts, it remains to be seen if any begin to use other analytical frameworks proposed, such as the "history, text, and tradition" test from the Heller II dissent or the prior restraints analysis suggested by parties challenging regulations under the Second Amendment.