In the wake of the Supreme Court’s Heller and McDonald decisions that clarify and protect Second Amendment rights, federal and state inferior courts have been engaging in massive resistance. Supreme Court decisions holding that a right is fundamental require obedience by lower courts if the rule of law is to prevail. The Supreme Court can grant review in another case and reassert its authority to this stubborn resistance. Absent that, legislative fixes are available, and the passage of time and a change in the culture may end the resistance.

Resistance by Inferior Courts to Supreme Court's Second Amendment Decision

I. INTRODUCTION The Supreme Court's decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) settled several important controversies concerning the Second Amendment right to keep and bear arms. (3) They also left many vital questions unanswered. Struggling with these unresolved issues, lower courts have produced a large and continually growing volume of decisions about the Second Amendment in recent years. In an article published in 2012, I described a surprising trend in the lower court decisions. (4) "Justice Antonin Scalia's majority opinion in Heller heavily emphasized historical investigation of the original meaning and traditional understandings of the right to keep and bear arms." (5) The Heller majority "also viewed the right in categorical terms, suggesting that courts should try to clearly demarcate the types of guns, people, and activities protected" by the Second Amendment. (6) While attempting to follow the Supreme Court's lead, the lower courts nevertheless drifted away from such a rigidly historical and categorical approach. They instead favored a more flexible, pragmatic sort of analysis, enabling them to weigh the burdens imposed by legal limits on firearms against the public policy concerns motivating such restrictions. (7) The emerging consensus in the lower courts was that constitutional challenges to gun laws should be evaluated under an intermediate scrutiny approach that was "highly deferential to legislative determinations and [resulted in] all but the most drastic restrictions on guns being upheld." (8) Historical analysis had "taken a backseat" to consideration of contemporary public policy implications. (9) I argued that this result was both inevitable and commendable. It was an unavoidable result of the fact that "historical inquiries are extremely difficult and do not produce determinate answers to the types of detailed questions" raised by the array of constitutional challenges being brought against a wide variety of gun laws. (10) The courts' cautious, sensible approach to these challenges deserved praise for giving appropriate deference to legislative decisions, respecting the wide variation in attitudes toward and experience with guns in different parts of the country, and being consistent with the American public's general consensus that the right to keep and bear arms should not preclude strong legal regulation of the possession and use of guns. (11) Moreover, the lower courts' approach had "the simple virtue of being candid," because it allowed judges to be honest and open about the policy calculus underlying their decisions, rather than pretending that historical analysis alone dictated the outcome of cases. (12) Gun rights advocates essentially agreed with that assessment of the lower courts' approach, although they strongly condemned the phenomenon rather than praising it. (13) They have begged the Supreme Court to take another step into the Second Amendment fray in order to provide additional guidance to "rectify the lower courts' widespread, determined resistance to enforcing the enumerated, fundamental constitutional right to keep and bear arms." (14) To date, they have been unsuccessful, as the Supreme Court has denied certiorari petitions in a string of cases concerning the right to keep and bear arms. (15) This Article provides an updated look at the ongoing battle over the Second Amendment in the lower courts. To some extent, the situation is much the same as it was when I last surveyed this field in 2012. (16) Judges have generally continued to apply a form of intermediate scrutiny that is very deferential to reasonable legislative determinations about what restrictions on guns address legitimate public safety concerns. (17) At the same time, they have moved toward integrating more historical analysis into their approach to Second Amendment issues. (18) History often will not provide any clear answers to modern Second Amendment questions, but courts are increasingly making efforts to glean whatever insight may be drawn from historical reflection. …

The Continuing Battle over the Second Amendment

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Claire Hogan

Papers

The Peerless Second Amendment: Why Gun Control Laws Remain Unaffected After Heller and McDonald