THE EVOLUTION OF THE SECOND AMENDMENT LEGAL ANALYTICAL FRAMEWORK

The Second Amendment to the United States Constitution States reads:

“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”

But what exactly does this mean? The answer was a core issue in the landmark United States Supreme Court decision of District v. Columbia v. Heller, 554 U.S. 570 (2008), which analyzed the meaning of the Second Amendment before applying it to the facts in the case.

As noted in the Heller majority opinion, the Second Amendment is divided into its prefatory and operative clauses. A prefatory clause, announces the operative clause's purpose but does not limit the operative clause. Knowing this, one could rephrase the Second Amendment to state: "Because a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

Anti-Second Amendment forces have long advocated the mistaken belief that the prefatory clause somehow limits the operative clause. They claim the Second Amendment only extends to a person serving in a "well-regulated militia." Such a "collective right" position takes the narrowest possible view of the Militia, namely that it is comprised only of state and congressionally regulated military forces. But as noted in Heller, Congress has the authority to call upon the Militia, but not to organize one. In other words, the Militia's existence is not dependent on the government forming it, for the Militia is already comprised of all able-bodied men and women. Moreover, as noted in Heller, the phrase "well regulated" implies nothing more than proper discipline and training because that was how the phrase was defined at the time of the Second Amendment's drafting.

With this understanding, the majority of the Supreme Court Justices in Heller then looked to the operative clause, holding that the Second Amendment confers an individual right to keep and bear arms pursuant to its text and history. Scholars of the founding era recognized a citizen's "right of self-preservation" as permitting a citizen to "repel force by force" when "the intervention of society in his behalf may be too late to prevent an injury." That same understanding applies to this day, often rephrased as "when seconds count, the police are only minutes away."

Heller clarified that the Second Amendment protects an individual right to keep a handgun in one's home for self-defense. But what else does the Second Amendment protect? The Heller decision didn’t address the scope of the right because the Court limited its analysis specifically to Washington DC's ban on the possession of handguns in the home – the specific issue in the case.

But significantly, the Court stressed that the Second Amendment "takes certain policy choices off the table, which include absolute prohibitions of handguns in one's home for self-defense.”  

In 2010, the Supreme Court extended this reasoning, applying the Second Amendment to the state and local governments through the Fourteenth Amendment in McDonald v. City of Chicago, 561 U.S. 742 (2010).

Still, neither the Heller nor McDonald decisions established a clear analytical framework to use for future Second Amendment cases. An analytical framework is the method by which a court analyzes a case to reach a decision determining whether a law is constitutional.

In most cases concerning constitutional rights courts have applied one of three levels of scrutiny as their analytical framework (aka the "standard of review" ): 1) Strict scrutiny, 2) Intermediate scrutiny, and 3) Rational basis.

Strict scrutiny provides the highest level of deference to individual rights, requiring the government to prove the challenged law is narrowly tailored to achieve a specific result and that the government has a compelling interest in taking such action.

Intermediate scrutiny requires the government to prove the challenged law is substantially related to its intended objective and that the government has an important interest in taking such action.

If the government fails to meet its burden under either standard, the law at issue will be held unconstitutional.

The rational basis standard provides a high level of defense to the government, shifting the burden of proof to the person challenging the government's action. Under a rational basis framework, the person must prove that there is no reasonable link between the government's interest and the challenged law or that the government has no legitimate interest in taking such action. Should the person fail to prove either, the law will be upheld.

Although Heller did not establish a clear analytical framework for Second Amendment lawsuits, one thing was clear—rational basis is inappropriate. If the Second Amendment confers an individual right, any law that infringes on that right should be presumed suspect absent sufficient justification and appropriate tailoring to that justification. The majority opinion also rejected the possibility of an "interest balancing" approach as advocated by the dissent because the Second Amendment was itself subject to that same approach when first adopted. So the interest balancing has already been done.

Despite the explicit rejection of an interest-balancing approach by the Supreme Court in Heller, many lower courts nonetheless adopted this improper approach. The first was the now vacated 2009 Seventh Circuit opinion in US v. Skoien, 587 F.3d 803 (7th. Cir. 2010), a case challenging the federal prohibition against persons convicted of misdemeanor crimes of domestic violence from owning or possessing firearms. The McDonald case had not yet been decided, meaning that at the time Heller only applied to federal laws, not state laws. But rather than faithfully applying the Heller standard to judge the constitutionality of this prohibition, the Seventh Circuit Court of Appeals adopted an interest-balancing test in Skoien.

Although the Skoien decision was ultimately vacated, the damage to the Heller test had already been done.

The Fourth Circuit adopted a similar test in US v. Chester, 628 F.3d 673 (4th Cir. 2010), another case challenging the federal prohibition against persons convicted of misdemeanor crimes of domestic violence. Similar tests were adopted by Third Circuit in US v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010), the Tenth Circuit in US v. Reese, 2 F.3d 870 (9th Cir. 1993), the D.C. Circuit in Heller v District of Columbia (Heller II) 746 F.3d 124 (2014),  and the Ninth Circuit in US v. Chovan, 735 F.3d 1127 (9th Cir. 2013).

In general, each of these Circuit's analytical frameworks first asked whether the law at issue regulates conduct that falls within the scope of the Second Amendment. If it does, the court then examines how closely the law comes to the core right and the severity of the burden placed upon the right in determining whether strict or intermediate scrutiny should apply. Such tests have become known as the "two-step" test. These are essentially improper interest-balancing tests by a different name.

In general, each of these Circuit court’s frameworks first asks whether the law at issue regulates conduct that falls within the scope of the Second Amendment. If it does, the court then examines how closely the law comes to the core right and the severity of the burden placed upon the right in determining whether strict or intermediate scrutiny should apply. Such tests have become known as the "two-step" test.

This framework created many problems, and challenges to gun laws were generally unsuccessful in the years following Heller, as circuit courts would overturn any rulings favorable to gun rights by engaging in interest balancing. Setting aside the many problems created by this framework, Skoien and these subsequent cases illustrate the importance of a coordinated and planned approach to Second Amendment litigation. As desirable as a coordinated approach may be, it simply hasn't happened. Passionate advocates with little constitutional litigation experience, insufficient resources, inadequate technical support, or simply desperate clients repeatedly brought Second Amendment claims that saw little success.

The incorrect "interest balancing" approach adopted by many courts and typically used to uphold the constitutionality of a gun control law finally came to an end in 2022 with the landmark ruling in N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022).

In Bruen, the Supreme Court declared that despite the popularity of the interest-balancing approach, "Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms" (Bruen, 142 S. Ct. at 2127).

Specifically, the Court laid out the correct analysis to be applied in Second Amendment cases: "When the Second Amendment's plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Id., at 2129-30.

To meet this burden, states must cite "well-established and representative" historical analogs and outlier laws are insufficient. Sometimes, a law cannot meet the test from the outset. "[W]hen a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment." Bruen, 142 S. Ct. at 2131. But when unprecedented societal concerns or dramatic technological changes are involved, states may argue that their laws are analogous to historical laws by showing that "how" and "why" the modern law and historical laws are "relevantly similar".

The immediate months after Bruen already saw more successes than Heller did in the 12 years since Heller was decided.

The first district courts to consider Second Amendment challenges have more frequently vindicated the rights of plaintiffs challenging overbearing gun laws, including examples such as Antonyuk v. Hochul, No. 1:22-CV-0986 (GTS/CFH), 2022 U.S. Dist. LEXIS 201944 (N.D.N.Y. Nov. 7, 2022), which struck down numerous restrictions that New York put in place to undermine the right to carry, and Boland v. Bonta, No. SACV 22-01421-CJC (ADSx), 2023 U.S. Dist. LEXIS 51031 (C.D. Cal. Mar. 20, 2023), which eliminated certain onerous requirements of California’s handgun roster law that had been previously upheld under Heller.

Only time will tell if all appellate courts apply Bruen in good faith. There are a lot of cases working their way through the system where these courts will have the opportunity.

The complex history of recent years illustrates the importance of a coordinated and planned approach to Second Amendment litigation. That is why 2ALC works to ensure the cases it supports will have the best possible chance for success and the best possible outcome for future litigation efforts and public policy that respects the Second Amendment and all the rights it guarantees.