Since the Supreme Court’s 2008 District of Columbia v. Heller, the U.S. Circuit Courts of Appeals have decided nearly 150 Second Amendment cases. From these cases, a fairly consistent set of doctrines has been developed. My new article The Federal Circuits’ Second Amendment Doctrines synthesizes and analyzes this emerging law. (The article is co-authored with Joseph G.S. Greenlee, and was submitted to law reviews yesterday.) The article covers all substantive topics on which the Circuits have ruled, from ammunition to zoning.
Of course not all Circuit decisions are perfectly consistent with each other. And the Second Circuit has become an outlier, structuring the Second Amendment standard of review to foreclose almost all potential challenges to government action. In general, though, the Circuits have developed a Second Amendment methodology with the following characteristics:
When Second Amendment rights are at issue, rational basis review is off the table. The Second Amendment right has many purposes, including self-defense, hunting, target shooting, militia, and all other lawful purposes. Self-defense is at the core of the right. The “arms” protected by the Second Amendment are the common arms typically possessed by law-abiding citizens, rather than dangerous and unusual weapons.
by David Kopel
