Kevin Schascheck II has posted The Procedural Vitality of Heller's Presumptively Lawful Categories (Forthcoming publication 2023 BELMONT LAW REVIEW XI) on SSRN. Here is the abstract:
After Bruen, the prevailing assumption was that the Second Amendment framework shifted radically. Courts throughout the country have already invalidated key gun safety statutes while applying the new test. However, such holdings fail to grapple with the full weight of Second Amendment doctrines. A proper application of the doctrine in toto will result in no significant changes to the constitutionality of the vast majority of gun laws after Bruen.
This Article explains the underdeveloped interaction between two principal Second Amendment doctrines--presumptions of legal validity and historical analyses. The interaction, framed in its simplest terms, is that the presumption acts either conclusively or as a burden-shifting device when considering historical evidence. By making explicit the procedural assumptions in Second Amendment cases, courts applying the doctrine properly will reduce the political pressures inherent in the doctrine and maintain the constitutionality of gun safety laws.
