The Reasonable Right to Bear Arms
by Professor Adam Winkler, UCLA School of Law
The decision last week by the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia has garnered considerable media attention and public comment. Breaking with 70 years of U.S. Supreme Court precedent, the decision held that the Second Amendment protected an individual right to bear arms—rather than a collective right of states to maintain militias free from government interference—and invalidated Washington, D.C.’s effective ban on handguns.
The Supreme Court may take up the question next term and many people suspect the Justices will agree that the Second Amendment guarantees an individual right. If the Court so rules, the results may not be the boon to the gun rights movement that the National Rifle Association and other “shooters” imagine. Most gun control will likely remain constitutionally permissible.
With any individual right, the most important issue is the standard of review used to judge the constitutionality of burdensome legislation. If the courts choose to apply an exacting standard, such as strict scrutiny, laws will tend to be invalidated. If the courts choose a more deferential standard, such as rational basis review, nearly all burdensome laws will be upheld.
While the scholarly debate over the proper meaning of the Second Amendment has raged on for years, almost no attention has been devoted to what standard of review would apply to gun control laws in the event the Court construes the amendment to protect an individual right to bear arms. And yet, in light of the role standards of review play in modern constitutional adjudication, this question is of the utmost significance.
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http://www.acsblog.org/bill-of-rights-guest-blogger-the-reasonable-right-to-bear-arms.html
