Andrew R. Gould (Vanderbilt University School of Law) has posted The Hidden Second Amendment Framework within District of Columbia v. Heller (Vanderbilt Law Review, Vol. 62, No. 5, pp. 1535-1576, 2009) on SSRN. Here is the abstract:
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In District of Columbia v. Heller, the Supreme Court squarely confronted the meaning of the Second Amendment and held that it protected an individual right to keep and bear a firearm for lawful purposes, such as self-defense in the home. Simultaneously, however, the Heller Court refused to set a framework for reviewing Second Amendment claims, leaving the issue open for another day. This issue is crucial: since Heller, lower federal courts have been deluged by Second Amendment claims based on the case, yet such courts have very little guidance as to how to review such claims. This Comment argues that courts have more guidance than they may believe. Using the text of Heller and the constitutional jurisprudence of the Heller majority, this Comment predicts the Second Amendment framework that the Heller majority has in mind or will embrace. Specifically, it articulates a two-pronged test: whether the challenged regulation (1) falls within the scope of the right protected by the Second Amendment, and (2) satisfies a deferential form of strict scrutiny.
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Under this watered-down version of Second Amendment strict scrutiny, a reviewing court would accord the government limited deference in satisfying both the compelling-interest and narrow- tailoring prongs. Given the list of “presumptively lawful regulatory measures,”228 it appears that the Heller Court accepts public safety, or what Professor Eugene Volokh calls “danger reduction,”229 as a compelling government interest—or else these measures would fail on the first prong of Second Amendment strict scrutiny. If the Heller Court itself is willing to imply public safety as a compelling interest without any prodding from the government on these regulations, it likely would accept virtually any argument by the government that there is a compelling interest—i.e., public safety—for a direct firearms regulation. Thus, the compelling interest prong does little work in the Second Amendment context; the key to this form of deferential strict scrutiny turns on narrow tailoring.
Under the deferential prong of narrow tailoring, a reviewing court would make a subjective determination as to the necessity of the challenged regulation to further public safety. As Professor Volokh explains, the reviewing court may “demand empirical evidence only” where it is skeptical of the law’s necessity to public safety.230 Professor Volokh identifies this approach as one that the Court has employed in certain strict scrutiny situations; however, he subsequently dismisses it, arguing that (1) it would lead to unpredictability in results and (2) judges are unqualified to determine when empirical evidence on public safety and firearms is or is not necessary.231
