# Post-Heller Second Amendment Jurisprudence

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR44618

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** March 25, 2019
- **Citation:** R44618

## Text

Post-Heller Second Amendment Jurisprudence
Sarah Herman Peck
Legislative Attorney
Updated March 25, 2019

Congressional Research Service
7-....
www.crs.gov
R44618

SUMMARY

Post-Heller Second Amendment Jurisprudence
The Second Amendment states that “[a] well-regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear arms, shall not be infringed.” Before the
Supreme Court’s 2008 opinion in District of Columbia v. Heller, the Second Amendment had
received little Supreme Court attention and had been largely interpreted, at least by the lower
federal courts, to be intertwined with military or militia use. Still, there had been ample debate in
the lower federal courts and political discussion over whether the Second Amendment provides
an individual right to keep and bear arms, versus a collective right belonging to the states to
maintain militias. Pre-Heller, the vast majority of lower federal courts had embraced the
collective right theory.

R44618
March 25, 2019
Sarah Herman Peck
Legislative Attorney
-re-acte--@crs.loc.gov
For a copy of the full report,
please call 7-.... or visit
www.crs.gov.

In Heller, though, the Supreme Court adopted the individual right theory, holding that the Second Amendment protects an
individual right for law-abiding citizens to keep and bear arms for lawful purposes including, most notably, self-defense in
the home. Two years later in McDonald v. City of Chicago, the Court held that the Second Amendment applies to the states
via selective incorporation through the Fourteenth Amendment.
After Heller and McDonald, numerous challenges were brought on Second Amendment grounds to various federal, state, and
local firearm laws and regulations. Because Heller neither purported to define the full scope of the Second Amendment, nor
suggested a standard of review for evaluating Second Amendment claims, the lower federal courts have been tasked with
doing so in the Second Amendment challenges brought before them. These challenges include allegations that provisions of
the Gun Control Act of 1968, as amended, as well as various state and local firearm laws (e.g., “assault weapon” bans,
concealed carry regulations, firearm licensing schemes) are unconstitutional. The analyses in these cases may provide useful
guideposts for Congress should it seek to enact further firearm regulations.
Generally, the courts have adopted a two-step framework for evaluating Second Amendment challenges. First, courts ask
whether the regulated person, firearm, or place comes within the scope of the Second Amendment’s protections. If not, the
law does not implicate the Second Amendment. But if so, the court next employs the appropriate level of judicial scrutiny—
rational basis, intermediate, or strict scrutiny—to assess whether the law passes constitutional muster. In deciding what level
of scrutiny is warranted, courts generally ask whether the challenged law burdens core Second Amendment conduct, like the
ability to use a firearm for self-defense in the home. If a law substantially burdens core Second Amendment activity, courts
typically will apply strict scrutiny. Otherwise, courts generally will apply intermediate scrutiny. Most challenged laws have
been reviewed for intermediate scrutiny, where a court asks whether a law is substantially related to an important
governmental interest. And typically, the viability of a firearm restriction will depend on what evidence the government puts
forth to justify the law. Yet sometimes courts take a different or modified approach from that described above and ask
whether a challenged regulation falls within a category deemed “presumptively lawful” by Heller. If the law falls within such
a category, a court does not need to apply a particular level of scrutiny in reviewing the restriction because the law does not
facially violate the Second Amendment.
In early 2019, the Supreme Court granted certiorari in New York State Rifle & Pistol Association, Inc. v. City of New York.
The Court is set to review a portion of New York City’s firearm licensing scheme that the U.S. Court of Appeals for the
Second Circuit upheld as valid. In doing so, the Court may clarify the scope of the right protected in the Second Amendment.
Importantly, to make this substantive ruling, the Court likely will have to answer a question that it has eluded since Heller:
Under what framework should Second Amendment challenges be evaluated?

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Contents
District of Columbia v. Heller ......................................................................................................... 2
Parker v. District of Columbia: Heller in the District Court ..................................................... 3
Parker v. District of Columbia: Heller in the D.C. Circuit Court of Appeals ........................... 4
District of Columbia v. Heller: Supreme Court’s Ruling .......................................................... 5
Majority Opinion ................................................................................................................ 5
Dissent: Justice Stevens ...................................................................................................... 8
Dissent: Justice Breyer ........................................................................................................ 9
Second Amendment Incorporation .................................................................................................. 9
McDonald v. City of Chicago .................................................................................................. 10
Federal Circuit Courts’ Post-Heller Approach to Second Amendment Analysis .......................... 12
Step One: Scope of Second Amendment Protection ............................................................... 13
Step Two: Applicable Standard of Review.............................................................................. 15
Post-Heller Rulings on the Constitutionality of Federal and State Firearm Regulations .............. 17
What Categories of Persons May Be Subject to Firearm Regulations? .................................. 17
What Categories of Firearms May Be Subject to Government Regulation?........................... 26
Where May Firearms Be Subject to Governmental Regulation? ............................................ 30
How May the Government Regulate Firearms Sales? ............................................................ 37
How May the Government Regulate Firearm Ownership Through Registration and
Licensing Schemes? ............................................................................................................. 41
Conclusion ..................................................................................................................................... 45

Contacts
Author Contact Information .......................................................................................................... 47

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he Second Amendment states that “[a] well-regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear arms, shall not be
infringed.”1 Before the Supreme Court’s 2008 opinion in District of Columbia v. Heller,
the right generally had been understood by federal courts to be intertwined with military or militia
use.2 That understanding was formed with little Supreme Court guidance: Before Heller, the
Supreme Court had barely opined on the scope of the Second Amendment, making its last
substantive remarks on the right in its 1939 ruling in United States v. Miller.3 In Miller, the
Supreme Court evaluated a criminal law banning possession of a certain type of firearm, asking
whether it bore a “reasonable relationship to the preservation or efficiency of a well regulated
militia” such that it garnered Second Amendment protection.4 This passage spawned a
longstanding debate over whether the Second Amendment provides an individual right to keep
and bear arms versus a collective right belonging to the states to maintain militias, with the vast
majority of the courts embracing the collective right theory.5 Indeed, before the Heller litigation
began only one circuit court—the Fifth Circuit6 in United States v. Emerson—had concluded that
the Second Amendment protects an individual’s right to keep and bear arms.7

T

The Supreme Court’s landmark 5-4 decision in Heller upturned the earlier majority view with its
holding that the Second Amendment guarantees an individual right to possess firearms for
historically lawful purposes, such as self-defense in the home.8 But in Heller the Court did not
1 U.S. CONST., amend II.
2 See, e.g., Parker v. District of Columbia, 311 F. Supp. 2d 103, 104-05 (D. D.C. 2004) (noting that the “vast majority

of circuit courts . . . reject[ed] an individual right to bear arms separate and apart from Militia use”); see also United
States v. Miller, 307 U.S. 174, 178-79 (1939); Dan M. Peterson & Stephen P. Halbrook, A Revolution in Second
Amendment, Law, 29-WTR DEL. LAW 12, 13 (2011/2012).
3 See United States v. Miller, 307 U.S. 174, 178-79 (1939); see also Sandra S. Froman & Kenneth A. Klukowski, A
Round in the Chamber: District of Columbia v. Heller & the Future of the Second Amendment, 9 ENGAGE: J.
FEDERALIST SOC’Y PRAC. GRPS. 16 (2008); Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J. L.
& LIBERTY 48 (2008). Before Miller, the Second Amendment was discussed by the Supreme Court in United States v.
Cruikshank, 92 U.S. 542 (1876), Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894). But
the Court did not offer any meaningful substantive guidance on the nature of the right protected by the Second
Amendment in those cases, holding only that the Second Amendment imposes restrictions on the federal government,
not the states. See Miller, 153 U.S. at 538; Presser, 116 U.S. at 265; Cruikshank, 92 U.S. at 592; see also United States
v. Emerson, 270 F.3d 203, 221 n.13 (5th Cir. 2001).
4 Miller, 307 U.S. at 178-79; see also Lewis v. United States, 445 U.S. 55, 65 n.8 (1980).
5 See Richard A. Allen, What Arms? A Textualist View of the Second Amendment, 18 GEO. MASON. U. CIV. RTS. L.J.
191, 191-93 (2008) (explaining the views taken by courts and scholars since Miller); Frye, supra note 3, at 49 & n.4
(collecting cases on both sides of the debate); Allison L. Mollenhauer, Note, Shot Down!: The D.C. Circuit Disarms
Gun Control Laws in Parker v. District of Columbia, 53 VILL. L. REV. 353, 356 (2008) (noting that since Miller, “there
has been disagreement among the federal circuits and legal analysts regarding whether the Second Amendment protects
an individual’s right to keep and bear arms or protects only the right of members of the militia to keep and bear arms”);
Joseph Bradley Adams, Note, Dispensing with the Second Amendment, 12 TRINITY L. REV. 75 (2004) (explaining the
two views “sparked” by Miller).
6 This report references a significant number of decisions by federal appellate courts of various regional circuits. For
purposes of brevity, references to a particular circuit in the body of this report (e.g., the Fifth Circuit) refer to the U.S.
Court of Appeals for that particular circuit.
7 270 F.3d 203 (5th Cir. 2001); see Amanda C. Dupree, Comment, A Shot Heard ‘Round the District: The District of
Columbia Circuit Puts a Bullet in the Collective Right Theory of the Second Amendment, 16 AM. U. J. GENDER SOC.
POL’Y & L. 413, 417-18 (2008); but see, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1086-87 (9th Cir. 2003) (adopting
collective right theory); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) (same); United States v.
Warin, 530 F.2d 103, 102 (6th Cir. 1976) (same); Frye, supra note 3, at 49 & n.4 (collecting circuit court cases that
employed a collective right theory).
8 See, e.g., Jason Racine, Note, What the Hell[er]? The Fine Print Standard of Review under Heller, 29 N. ILL. U. L.
REV. 605, 611 (2009).

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define the full scope of that right, leaving lower courts to fill in the gaps. Indeed, the Court has
said little on the matter, most notably by holding that the Second Amendment right is
incorporated through the Fourteenth Amendment to apply to the states in McDonald v. City of
Chicago.9 Beyond McDonald, the Court has largely declined to grant certiorari10 to the numerous
Second Amendment cases percolating in the lower federal courts with one exception: In Caetano
v. Massachusetts, the Supreme Court—in a single, two page ruling—granted a petition for
certiorari and issued an unsigned, per curiam opinion vacating the decision of the Massachusetts
Supreme Court that had upheld a state law prohibiting the possession of stun guns.11 But the
Court’s opinion did little to clarify Second Amendment jurisprudence, principally noting that the
state court opinion directly conflicted with Heller without discussing the matter in further detail.12
During the October 2019 term, however, the Supreme Court will review a Second Amendment
challenge to a New York City firearm licensing provision in New York State Rifle & Pistol
Association, Inc. v. City of New York, giving the Court another opportunity to elaborate on the
scope of the individual right to keep and bear arms.13
Accordingly, this report evaluates how the lower federal courts have interpreted Heller and the
Second Amendment through challenges to various federal, state, and local firearm laws. In
particular, this report focuses on federal appellate decisions, including what categories of persons,
firearms, and places may be subject to government firearm regulation, and how federal, state, and
local governments may regulate those categories. These appellate decisions include challenges to
provisions of the Gun Control Act14—the primary federal law regulating the transfer and
possession of firearms in interstate commerce—as well as state and local laws that provide further
restrictions on the possession and sale of firearms, including assault weapon bans, concealed
carry restrictions, and firearm licensing schemes, among others. This report is not intended to
provide a comprehensive analysis of every Second Amendment issue brought in federal court
since Heller, but highlights notable challenges to firearm laws that may be of interest to Congress.

District of Columbia v. Heller
Before Heller, the District of Columbia had a web of regulations governing the ownership and use
of firearms that, taken together, amounted to a near-total ban on handguns in the District.15 One
law generally barred the registration of most handguns.16 Another law required persons with
registered firearms to keep them “unloaded and either disassembled or secured by a trigger lock,

9 McDonald v. City of Chicago, 561 U.S. 742 (2010).
10 See Lawrence Hurley, REUTERS, Supreme Court Rejects Challenge to State Assault Weapon Bans, Reuters (Jun. 20,

2016 1:01 P.M.), https://www.reuters.com/article/us-usa-court-guns-idUSKCN0Z61JE (noting that the Supreme Court
declined to review New York and Connecticut’s assault weapon bans, which “underlined its reluctance to insert itself
into the simmering national debate on gun control”); Matt Ford, THE ATLANTIC, Have the Justices Gone Gun-Shy?
(Dec. 7, 2015), http://www.theatlantic.com/politics/archive/2015/12/supreme-court-gun-rights/419160/ (observing that
the Supreme Court has yet to opine further on the Second Amendment since Heller and McDonald).
11 Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) Stun guns are not regulated under the Gun Control Act. See
generally Pub. L. No. 90-618, 82 Stat. 1213-2 (1968), codified as amended at 18 U.S.C. § 922.
12 See Caetano, 136 S. Ct. at 1027-28.
13 See N.Y. State Rifle & Pistol Ass’n v. City of New York, 883 F.3d 45 (2d Cir. 2018), cert. granted in —S. Ct.—,
No. 18-280, 2019 WL 271961 (2019).
14 Pub. L. No. 90-618, 82 Stat. 1213-2 (1968).
15 See Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1553 (2009).
16 See Parker v. District of Columbia (Parker II), 478 F.3d 370, 373 (D.C. Cir. 2007).

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gun safe, locked box, or other secure device.”17 And a third law prohibited persons within the
District of Columbia from carrying (openly or concealed, in the home or elsewhere) an
unlicensed firearm.18 In 2003, six D.C. residents challenged those three measures as
unconstitutional under the Second Amendment, arguing that the Constitution provides an
individual right to bear arms.19 In particular, the residents contended that the Second Amendment
provides individuals a right to possess “functional firearms” that are “readily accessible to be
used . . . for self-defense in the home.”20

Parker v. District of Columbia: Heller in the District Court
In Parker v. District of Columbia,21 the district court was tasked with gleaning the meaning of the
right provided by the Second Amendment. The last word from the Supreme Court on this right
was in its 1939 ruling, United States v. Miller.22 Miller involved a challenge to a federal
indictment for unlawfully transporting in interstate commerce an unregistered double barrel 12gauge shotgun with a barrel less than 18 inches in length,23 as had been prohibited by the National
Firearms Act of 1934.24 A district court had dismissed the indictment after concluding that the
challenged criminal provision infringed the defendant’s Second Amendment rights.25 The
Supreme Court, on direct appeal, reversed that ruling:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having
a barrel of less than eighteen inches in length’ at this time has some reasonable relationship
to the preservation or efficiency of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument. 26

In reaching that conclusion, the Court emphasized that the Second Amendment must be
interpreted in the context in which it was enacted: “[w]ith [the] obvious purpose to assure the
continuation and render possible the effectiveness of” Congress’s power to “provide for
organizing, arming, and disciplining, the Militia.”27
Relying on the Supreme Court’s guidance in Miller, the district court in Parker rejected the
plaintiffs’ contention that the Second Amendment provides an individual right to bear arms
unrelated to militia use.28 The court additionally noted that this conclusion matched those of every
other federal circuit court to have considered the issue except for one recent Fifth Circuit
decision.29 Accordingly, the district court dismissed the lawsuit for failing to state a claim for
17 See id.
18 See id.
19 Parker v. District of Columbia, 311 F. Supp. 2d 103, 103-04 (D.D.C. 2004).
20 Parker II, 478 F.3d at 374.
21 Initially, the case name for Heller was styled as Parker v. District of Columbia.
22 307 U.S. 174 (1939).
23 Id. at 175.
24

Act of June 26, 1934, 48 Stat. 1236-1240.

25 Miller, 307 U.S. at 176-77.
26 Id. at 178-79.
27 Id. at 178 (citing U.S. CONST. art. I, § 8).
28 Parker v. District of Columbia, 311 F. Supp. 2d 103, 105 (D.D.C. 2004).
29 Id. at 106-07 (citing United States v. Bayles, 310 F.3d 1302, 1307 (10th Cir. 2002), United States v. Napier, 233 F.3d

394, 403 (6th Cir. 2000), Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999), United States v. Wright,
117 F.3d 1265, 1273 (11th Cir. 1997), Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995), United States v. Nelsen,
850 F.2d 1318, 1320 (8th Cir. 1988), Thomas v. Members of City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984),

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relief under the Second Amendment, reasoning that it “would be in error to overlook sixty-five
years of unchanged Supreme Court precedent and the deluge of circuit case law rejecting an
individual right to bear arms not in conjunction with service in the Militia.”30

Parker v. District of Columbia: Heller in the D.C. Circuit Court of
Appeals
The D.C.-resident plaintiffs appealed to the D.C. Circuit, and a divided 3-judge panel reversed the
district court’s ruling.31 The crux of the debate at the circuit court centered on whether the court
should adopt the “collective right” versus “individual right” theory of the Second Amendment.32
Framed this way, the D.C. Circuit, unlike the district court, perceived the issue before it as one of
first impression, opining that Miller actually addressed the kinds of “arms” that the Second
Amendment protects.33
Under the collective right theory advanced by the District of Columbia (District), the Second
Amendment protects only the right of states to maintain and arm their militias.34 Accordingly, the
District argued that the Second Amendment’s prefatory clause—“[a] well regulated Militia, being
necessary to the security of a free State”—announces the Amendment’s sole purpose: to protect
state militias from federal intrusion, and limiting the right to keep and bear arms to military
uses.35 Under the individual right theory, advanced by the plaintiffs, the Second Amendment
guarantees individuals a right to keep and bear arms for personal use.36 Pointing to a different part
of the Amendment’s text, the plaintiffs argued that its operative clause—“the right of the people
to keep and bear Arms shall not be infringed”—signals an individual right.37
The D.C. Circuit rejected the collective right theory advanced by the District, reasoning that
Supreme Court precedent interpreting the meaning of “the people,” as used in the Bill of Rights,
required the court to conclude that “the people,” as used in the Second Amendment, refers to
individual persons, and thus the Amendment protects an individual right.38 The court additionally
noted that, because founding era-like militias no longer exist, the argument put forth by the

and United States v. Graves, 554 F.2d 65, 66 n.2 (3d Cir. 1977)). In United States v. Emerson, the Fifth Circuit
concluded, after surveying the history and purpose underlying the Second Amendment, that it “protects the right of
individuals . . . to privately possess and bear their own firearms . . . that are suitable as personal, individual weapons”
regardless of the individual’s relationship to militia or military service, and that Miller does not preclude that
interpretation. 270 F.3d 203, 260 (5th Cir. 2001).
30 Parker, 311 F. Supp. 2d at 109-10.
31 Parker II, 478 F.3d 370 (D.C. Cir. 2007).
32 Id. at 378-401.
33 Id. at 380-81, 391, 392-94.
34 Id. at 379.
35 Parker II, 478 F.3d at 378.
36 Id. at 379.
37 Id. at 381 (emphasis added).
38 Id. at 381-82. The court had relied on United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which the
Supreme Court had declared that the phrase “the people,” as used the First, Second, and Fourth Amendments, “refers to
a class of persons who are part of a national community or who have otherwise developed sufficient connection with
this country to be considered part of that community.” Id. at 265. The Court had made this declaration in its analysis of
the Fourth Amendment to determine the question presented in Verdugo-Urquidez: “[W]hether the Fourth Amendment
applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in
a foreign country.” See id. at 261, 265 The Court concluded that it does not. Id. at 261.

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District would render the Second Amendment a “dead letter.”39 Having established that the
Second Amendment protects an individual right to keep and bear arms, the court next addressed
the scope of that right by examining the lawful, private purposes for which founding-era persons
owned and used firearms.40 The court concluded that the right encompasses firearm uses preexisting the Constitution, such as hunting and self-defense against private misconduct or a
tyrannical government.41 And though the right could be subject to “reasonable restrictions,” the
court noted that the Constitution would not tolerate laws, like the District’s, that amount to a
“virtual prohibition” on handgun possession.42
One judge dissented on the ground that the District is not a state within the meaning of its use in
the Second Amendment, and thus its protections—whatever they may be—do not reach it.43

District of Columbia v. Heller: Supreme Court’s Ruling
The challenge made its way to the Supreme Court, which, in a 5-4 decision authored by Justice
Scalia, affirmed the D.C. Circuit’s conclusion that the Second Amendment provides an individual
right to keep and bear arms for lawful purposes.44 The majority arrived at this conclusion after
undertaking an extensive analysis of the founding-era meaning of the words in the Second
Amendment’s prefatory and operative clauses. Applying that interpretation to the challenged D.C.
firearm laws, the Court concluded that the District’s functional ban on handgun possession in the
home and the requirement that lawful firearms in the home be rendered inoperable were
unconstitutional.45

Majority Opinion
Textual Analysis
The majority analyzed the Second Amendment’s two clauses and concluded that the prefatory
clause, indeed, announces the Amendment’s purpose.46 And though there must be some link
between the stated purpose and the command in the operative clause, the Court concluded that
“the prefatory clause does not limit . . . the scope of the operative clause.”47 Accordingly, the
Court assessed the meaning of the Second Amendment’s two clauses.

39 Parker II, 478 F.3d at 378.
40 Id. at 382.
41 Id. at 395.
42 Id. at 397-99.
43 Id., at 401-09 (Henderson, J., dissenting).
44 District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742, 780 (2010)

(“[O]ur central holding in Heller[ is] that the Second Amendment protects a personal right to keep and bear arms for
lawful purposes, most notably for self-defense within the home.”).
45 The Court did not evaluate the challenged licensing law on that ground that the District had asserted that, “‘if the
handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not
otherwise disqualified,’” which the Court interpreted to mean that “he is not a felon and is not insane.” See Heller, 554
U.S. at 630-31.
46 Id. at 577.
47 Id. at 577-78.

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Prefatory Clause
“A well regulated Militia, being necessary to the security of a free State . . .”

Operative Clause
“. . . the right of the people to keep and bear Arms, shall not be infringed.”

Beginning with the operative clause, the Supreme Court first concluded that the phrase the “right
of the people,” as used in the Bill of Rights, universally communicates an individual right, and
thus the Second Amendment protects a right that is “exercised individually and belongs to all
Americans.”48 Next, the Court turned to the meaning of “to keep and bear arms.”49 “Arms,” the
Court said, has the same meaning now as it did during the eighteenth century: “any thing that a
man wears for his defence, or takes into his hands, or use[s] in wrath to cast at or strike another,”
including weapons not specifically designed for military use.50 The Court then turned to the full
phrase “keep and bear arms.” To “keep arms,” as understood during the founding period, the
Court said, was a “common way of referring to possessing arms, for militiamen and everyone
else.”51 And “bearing arms,” during the founding period as well as currently, the Court said,
means to carry weapons for the purpose of confrontation; but even so, the Court added, the phrase
does not “connote[] participation in a structured military organization.”52 Taken together, the
Court concluded that the Second Amendment “guarantee[s] the individual right to possess and
carry weapons in case of confrontation.”53 The Court added that its textual analysis was supported
by the Amendment’s historical background, which was relevant to its analysis because, the Court
reasoned, the Second Amendment was “widely understood” to have codified a pre-existing
individual right to keep and bear arms.54
Turning back to the prefatory clause, the Supreme Court majority concluded that the term “wellregulated militia” does not refer to state or congressionally regulated military forces as described
in the Constitution’s Militia Clause;55 rather, the Second Amendment’s usage refers to all “ablebodied men” who are “capable of acting in concert for the common defense.”56 And the security
of a free “state,” the Court opined, does not refer to the security of each of the several states, but
rather the security of the country as a whole.57
Coming full circle to the Court’s initial declaration that the two clauses must “fit” together, the
majority concluded that the two clauses fit “perfectly” in light of the historical context showing
that “tyrants had eliminated a militia consisting of all the able-bodied men . . . by taking away the
people’s arms.”58 Thus, the Court announced, the reason for the Second Amendment’s
48 Id. at 579-81.
49 Id. at 581-91.
50 Id.at 581.
51 Id. at 582-83 (emphasis in original).
52 Id. at 584.
53 Id. at 592.
54 Heller, 554 U.S. at 592-95.
55 U.S. CONST. art I, § 8, cl. 15 (“The Congress shall have Power . . . to provide for calling forth the Militia to execute

the Laws of the Union, suppress Insurrections and repel Invasions.”).
56 Heller, 554 U.S. at 595-96.
57 Id. at 597.
58 Id. at 598

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codification was “to prevent elimination of the militia,” which “might be necessary to oppose an
oppressive military force if the constitutional order broke down.”59 But the reason for
codification, the Court clarified, does not define the entire scope of the right the Second
Amendment guarantees.60 This is so because, the Court explained, the Second Amendment
codified a pre-existing right that included using firearms for self-defense and hunting, and thus
the pre-existing right also informs the meaning of the Second Amendment.61

Squaring Heller with Miller
The Supreme Court majority added that its conclusion was not foreclosed by its earlier ruling in
Miller, which, as discussed above, had largely been viewed by the lower federal courts as
advancing the collective right theory. Like the D.C. Circuit, the Supreme Court concluded that
Miller addressed only the type of weapons eligible for Second Amendment protection.62
Furthermore, in the Court’s view, the fact that Miller assessed a type of unlawfully possessed
weapon supported its conclusion that the Second Amendment protects an individual right, noting
that “it would have been odd to examine the character of the weapon rather than simply note that
the two crooks were not militiamen.”63 Nor, the Court added, did Miller “purport to be a thorough
examination of the Second Amendment,” and thus, the Court reasoned, it cannot be read to mean
more than “say[ing] only that the Second Amendment does not protect those weapons not
typically possessed by law-abiding citizens for lawful purposes, such as short-barreled
shotguns.”64

Scope of the Right
After announcing that the Second Amendment protects an individual’s right to possess firearms,
the Supreme Court explained that, “[l]ike most rights, the right secured by the Second
Amendment is not unlimited.”65 Nevertheless, the Court left for another day an analysis of the full
scope of the right.66 The Court did clarify, however, that “nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the commercial sale of
firearms,” among other “presumptively lawful” regulations.67 And as for the kind of weapons that
may obtain Second Amendment protection, the Court noted that Miller limits Second Amendment
coverage to weapons “in common use at the time” that the reviewing court is examining a
particular firearm, which, the Court added, “is fairly supported by the historical tradition of
prohibiting the carrying of dangerous and unusual weapons.”68
59 Id. at 599.
60 Id.
61 Id. at 599-600.
62 Id. at 621-22.
63 Id. at 622.
64 Id. at 623-25.
65 Id. at 626.
66 Id.
67 Id. at 626-27 & n.26.
68 Id.at 627 (internal quotation marks and citations omitted) (“Some have made the argument, bordering on the

frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not
interpret constitutional rights that way. Just as the First Amendment protects modern forms of communication…the

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Second Amendment Analysis of D.C.’s Firearms Regulations
Finally, the Supreme Court applied the Second Amendment, as newly interpreted, to the contested
D.C. firearm regulations—which amounted to a near-total handgun ban—and concluded that they
were unconstitutional.69 First, the Court declared that possessing weapons for self-defense is
“central to the Second Amendment right,” yet the District’s handgun ban prohibits “an entire
class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.”70
Moreover, the handgun prohibition extended into the home, where, the Court added, “the need for
defense of self, family, and property is most acute.”71 Additionally, the requirement that firearms
in the home be kept inoperable is unconstitutional because, the Court concluded, that requirement
“makes it impossible for citizens to use them for the core lawful purpose of self-defense.”72 Thus,
the Court ruled, the District’s handgun ban could not survive under any level of scrutiny that a
court typically would apply to a constitutional challenge of an enumerated right.73

Dissent: Justice Stevens
Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented.74 Justice Stevens did
not directly quarrel with the majority’s conclusion that the Second Amendment provides an
individual right, asserting that it “protects a right that can be enforced by individuals.”75 But he
disagreed with the majority’s interpretation of the scope of the right, contending that neither the
text nor history of the Amendment supports “limiting any legislature’s authority to regulate
private civilian uses of firearms” or “that the Framers of the Amendment intended to enshrine the
common-law right of self-defense in the Constitution.”76 Additionally, he characterized the
majority’s interpretation of Miller as a “dramatic upheaval in the law.”77 In his view, Miller
interpreted the Second Amendment as “protect[ing] the right to keep and bear arms for certain
military purposes” and not “curtail[ing] the Legislature’s power to regulate the nonmilitary use
and ownership of weapons.” This interpretation, Justice Stevens added, “is both the most natural
reading of the Amendment’s text and the interpretation most faithful to the history of its
adaptation.”78

Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding.”); see also Caetano v. Massachusetts, 136 S. Ct. 1027, 1027-28 (2016) (noting
that the Massachusetts Supreme Court’s conclusion “that stuns guns are not protected [by the Second Amendment]
because they ‘were not in common use at the time of the Second Amendment’s enactment’. . . . is inconsistent with
Heller’s clear statement”).
69 Heller, 554 U.S. at 628-36.
70 Id. at 628.
71
Id. at 628-29.
72 Id. at 630.
73 Id. at 628-29.
74 Id. at 636-80 (Stevens, J., dissenting).
75 Id.at 636.
76 Id. at 636-37.
77 Id. at 639.
78 Id. at 637-38.

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Dissent: Justice Breyer
Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, authored another dissent.79
Although agreeing with Justice Stevens that the Second Amendment protects only militia-related
firearm uses, in his dissent he argued that the District’s laws were constitutional even under the
majority’s conclusion that the Second Amendment protects firearm possession in the home for
self-defense.80 He began by assessing the appropriate level of scrutiny under which Second
Amendment challenges should be analyzed.81 Justice Breyer suggested an interest-balancing
inquiry in which a court would evaluate “the interests protected by the Second Amendment on
one side and the governmental public-safety concerns on the other, the only question being
whether the regulation at issue impermissibly burdens the former in the course of advancing the
latter.”82 In making that evaluation, Justice Breyer would ask “how the statute seeks to further the
governmental interests that it serves, how the statute burdens the interests that the Second
Amendment seeks to protect, and whether there are practical less burdensome ways of furthering
those interests.”83 Applying those questions to the challenged D.C. laws, Justice Breyer concluded
that (1) the laws sought to further compelling public-safety interests; (2) the D.C. restrictions
minimally burdened the Second Amendment’s purpose to preserve a “well regulated Militia” and
burdened “to some degree” an interest in self-defense; and (3) there were no reasonable but less
restrictive alternatives to reducing the number of handguns in the District.84 Thus, in Justice
Breyer’s view, the District’s gun laws were constitutional. He also anticipated that the majority’s
decision would “encourage legal challenges to gun regulation throughout the Nation.”85 The
majority did not seem to voice disagreement with this prediction, but noted that “since this case
represents this Court’s first in-depth examination of the Second Amendment, one should not
expect it to clarify the entire field.”86 Indeed, after Heller a series of challenges to federal and
state firearms laws occurred.

Second Amendment Incorporation
Because Heller involved a challenged to a D.C. law, and because the District is generally not
viewed as a state for purposes of constitutional law,87 a question beyond the scope of Heller was
whether the Second Amendment applies to the states.88 Initially, the Bill of Rights was thought
solely to restrict the power of the federal government.89 Only after the Fourteenth Amendment’s
79 Id. at 681-723 (Breyer, J., dissenting).
80 Id. at 681-82.
81 Id. at 687-91.
82 Id. at 689-90. The majority explicitly rejected Justice Breyer’s suggested approach. Id. at 634 (majority opinion)

(“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding
‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third
Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).
83 Id. at 693 (Breyer, J., dissenting).
84 Id. at 691-719.
85 Id. at 718.
86 Id. at 635 (majority opinion).
87 See Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1805).
88 See Heller, 554 U.S. at 620 n.23; Kenneth A. Klukowski, Citizen Gun Rights: Incorporating the Second Amendment
through the Privileges or Immunities Clause, 39 N.M. L. REV. 195, 203 (2009).
89 See Barron v. City of Baltimore, 32 U.S. (Pet.) 243 (1833); Livingston v. Moore, 32 U.S. (Pet.) 469, 551-52 (1833);
see also McDonald v. City of Chicago, 561 U.S. 742, 754 (2010); Heller, 554 U.S. at 625; Klukowski, supra note 87,

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adoption did the Supreme Court contemplate whether the Bill of Rights applies to the states.90
Section One of the Fourteenth Amendment declares that “[n]o state shall make or enforce any law
which shall abridge the privileges or immunities of the Unites States; nor shall any state deprive
any person of life, liberty, or property, without due process of law.”91 During the nineteenth and
twentieth centuries, several theories were advanced, with varying results, concerning whether the
Fourteenth Amendment requires states to comply with the Bill of Rights.92 The theory that
eventually achieved the greatest success was selective incorporation through the Fourteenth
Amendment’s Due Process Clause.
Under the doctrine of selective incorporation, courts address whether the Due Process Clause of
the Fourteenth Amendment fully incorporates a particular provision (and not an amendment as a
whole) in the Bill of Rights and thus applies to the states.93 To do so, courts evaluate whether the
particular provision is “fundamental to our scheme of ordered liberty” as well as “deeply rooted
in this Nation’s history and tradition.”94 Most provisions of the Bill of Rights have been
incorporated under this theory.95 And most recently in McDonald v. City of Chicago, the Supreme
Court addressed whether the Second Amendment applies to the states.96

McDonald v. City of Chicago
After Heller several firearms associations, along with residents of the City of Chicago and its
neighboring suburb of Oak Park, Illinois, brought Second Amendment challenges to ordinances
banning handgun possession in those municipalities.97 The lawsuits were dismissed in the federal
district court on the ground that the Supreme Court had yet to apply the Second Amendment to
at 208; Jerold H. Israel, Selective Incorporation: Revisited, 71 GEO. L.J. 253, 254-55 (1982).
90 See McDonald, 561 U.S. at 754.
91 U.S. CONST. amend XIV, § 1.
92 The Supreme Court initially was tasked with determining whether the Fourteenth Amendment’s Privileges or
Immunities Clause requires states to comply with the Bill of Rights in the Slaughter-House Cases. 83 U.S. (Wall) 36
(1873). According to the Court, it did not. Id. By the late nineteenth century, the Court began examining whether the
Due Process Clause of the Fourteenth Amendment requires states to comply with the Bill of Rights; under that early
inquiry, one of the Bill of Rights could be applied against the states, but without providing “the people” the same
protections as against federal intrusions of those rights. See McDonald, 561 U.S. at 759-61; Suja A. Thomas,
Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 NOTRE DAME L. REV. 159, 163 (2012); Richard J.
Hunter, A Nomination of a Supreme Court Justice: The Incorporation Doctrine Revisited, 35 OKLA. CITY U. L. REV.
365, 375-77 (2010); Kurt T. Lash, Beyond Incorporation, 18 J. CONTEMP. LEGAL ISSUES 447, 450-51 (2009);
Klukowski, supra note 87, at 210-12. However, in the twentieth century, a minority of the Court, led by Justice Black,
advanced the theory that the Due Process Clause of the Fourteenth Amendment fully incorporates the Bill Rights,
making them applicable to the states. See Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting); The
Honorable Joseph R. Weisberger, The Selective Incorporation Process & Judicial Activism, 59 APR R.I. B.J. 13, 14-15
(2011); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges
or Immunities & Due Process Clauses, 72 MO. L. REV. 1, 42 (2007).
93 Peter J. Rubin, Square Pegs & Round Holes: Substantive Due Process, Procedural Due Process, & The Bill of
Rights, 103 COLUM. L. REV. 833, 842 (2003); Thomas, supra note 91, at 163.
94 See McDonald, 561 U.S. at 767 (emphasis omitted); see also Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (asking
whether a demand for a jury trial is a “right among those fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions”) (internal quotation marks and citation omitted); Sen. Sheldon
Whitehouse, Restoring the Civil Jury’s Role in the Structure of Our Government, 55 WM. & MARY L. REV. 1241, 1273
(2014).
95 Compare McDonald, 561 U.S. at 764 n.12 (listing incorporated rights), with id. at 764 n.13 (listing unincorporated
rights).
96 561 U.S. 742 (2010).
97 Nat’l Rifle Ass’n of Am., Inc. v. City of Chicago, Ill., 567 F.3d 856, 857 (7th Cir. 2009).

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the states.98 The Seventh Circuit affirmed, reasoning that century-old Supreme Court precedent
had long ago announced that the Second Amendment does not apply to the states.99
The Supreme Court reversed in a 4-1-4 ruling authored by Justice Alito, concluding that “the
Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms
among those fundamental rights necessary to our system of ordered liberty.”100 Thus, the Court
held that the Second Amendment is applicable to the states through the Due Process Clause of the
Fourteenth Amendment.101 The plurality first noted that Heller makes “unmistakabl[e]” that the
basic right to self-defense is a “central component” of the Second Amendment and “deeply rooted
in this Nation’s history and tradition.”102 The Court reiterated much of the information recited in
Heller about the founders’ relationship to arms, including the fear many held—based on King
George III’s attempts to disarm the colonists—that the newly created federal government, too,
would disarm the people to impose its will.103 And even though the initial perceived threat of
disarmament had dissipated by the 1850s, the plurality asserted that, still, “the right to keep and
bear arms was highly valued for purposes of self-defense.”104 The Court also pointed to
congressional debate in 1868 of the Fourteenth Amendment, during which Senators had referred
to the right to keep and bear arms as a “fundamental right deserving of protection.”105
In his concurring opinion, Justice Thomas said that he would have construed the Second
Amendment to be applicable to the states via the Privileges or Immunities Clause of the
Fourteenth Amendment because, in his view, “the right to keep and bear arms is guaranteed by
the Fourteenth Amendment as a privilege of American citizenship.”106 But his opinion,
nevertheless, provided the crucial fifth vote to hold that the Second Amendment applies to the
states.107

Dissenting Opinions
Justice Breyer dissented (joined by Justices Ginsburg and Sotomayor), contending that “nothing
in the Second Amendment’s text, history, or underlying rationale . . . warrant[s] characterizing it
as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private selfdefense purposes.”108 Additionally, he asserted that the Constitution provides no authority for
98 Id. at 857.
99 Id. at 857-58 (citing United States v. Cruikshank, 92 U.S. 542 (1876), Presser v. Illinois, 116 U.S. 252 (1886), and

Miller v. Texas, 153 U.S. 535 (1894)).
100 McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).
101 Id. at 791. Although Justice Thomas was part of the five-Justice majority of the McDonald Court who agreed that
the Second Amendment was applicable to the states via the Fourteenth Amendment, he disagreed with his colleagues’
view that the Due Process Clause served as the proper basis for this incorporation. Id. at 805-58 (Thomas, J.,
concurring). In Justice Thomas’s view, the Fourteenth Amendment’s Privileges or Immunities Clause provided the
source for incorporation, rejecting the Slaughter-House Cases “insofar as it precludes any overlap between the
privileges and immunities of state and federal citizenship.” Id. at 805-06, 855.
102 Id. at 767-68 (internal emphasis, quotation marks, and citations omitted) (plurality).
103 Id. at 768.
104 Id. at 770.
105 Id. at 775-76 (internal quotation marks and citations omitted).
106 Id. at 778 (Thomas, J., concurring); but see id. at 859-60 (Stevens, J., dissenting) (agreeing with plurality’s rejection
of incorporation under the Privileges or Immunities Clause).
107 See Alan Gura, Ilya Shapiro, & Josh Blackman, The Tell-Tale Privileges or Immunities Clause, 2010 CATO SUP. CT.
REV. 163, 174 (2009-2010).
108 McDonald, 561 U.S. at 913 (Breyer, J., dissenting).

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“transferring ultimate regulatory authority over the private uses of firearms from democratically
elected legislators to courts or from the States to the Federal Government.”109
Justice Stevens authored another dissenting opinion, arguing that the question before the Court
was not whether the Second Amendment, as a whole, applies to the states, but rather whether the
Fourteenth Amendment requires that the liberty interest asserted—“the right to possess a
functional, personal firearm, including a handgun, within the home”—be enforceable against the
states.110 In his view, the Second Amendment is not enforceable against the states, particularly
because the Amendment is a “federalism provision” that is “directed at preserving the autonomy
of the sovereign States, and its logic therefore resists incorporation by a federal court against the
states.”111

Federal Circuit Courts’ Post-Heller Approach to
Second Amendment Analysis
After Heller and McDonald, lawsuits were brought nationwide challenging on Second
Amendment grounds various federal, state, and local firearms regulations. Heller did not define
the full scope of the right protected by the Second Amendment, but the main take away may be
summed up as follows: The Second Amendment protects the right of law-abiding citizens to
possess weapons for lawful purposes, notably, self-defense in the home.112 With this minimal
guidance from the Supreme Court, the circuit courts largely have been applying a two-step
inquiry, drawn from the discussion in Heller, to determine whether a particular law is
constitutional.113 First, courts ask whether the challenged law burdens conduct protected by the
Second Amendment.114 If it does not, the inquiry ends, as the law does not implicate the Second
Amendment.115 But if the challenged law does burden conduct protected by the Second

109 Id.
110 McDonald, 561 U.S. at 858, 884, 890 (Stevens, J., dissenting).
111 Id. at 897 (Stevens, J., dissenting) (internal quotation marks and citations omitted). Justice Stevens added that “[t]he

idea that States may place substantial restrictions on the right to keep and bear arms short of complete disarmament is,
in fact, far more entrenched than the notion that the Federal Constitutional protects any such right,” noting that
“[f]ederalism is a far older and more deeply rooted tradition than is a right to carry or to own any particular kind of
weapon.” See id. at 899 (internal quotation marks and citation omitted).
112 See, e.g., McDonald, 561 U.S. at 767 (“[I]n Heller, we held that individual self-defense is ‘the central component’
of the Second Amendment right.”); United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (“The upshot of
[Heller and McDonald] is that there now exists a clearly-defined fundamental right to possess firearms for self-defense
within the home. But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the
standards for determining whether and how the right can be burdened by governmental regulation.”); see also
Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship & The Right to Bear Arms, 85 N.Y.U.
L. REV. 1521, 1522-23 (2010).
113 See, e.g., Powell v. Tompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015) (collecting cases); N.Y. State Rifle & Pistol
Ass’n v. Cuomo, 804 F.3d 242, 254 & n.49 (2d Cir. 2015) (collecting cases); see also Ezell v. City of Chicago, 651
F.3d 684, 701 (7th Cir. 2011) (“The [Supreme] Court resolved the Second Amendment challenge in Heller without
specifying any doctrinal ‘test’ for resolving future claims.”).
114 See, e.g., United States v. Jimenez, 895 F.3d 228, 232 (2d Cir. 2018); Silvester v. Harris, 843 F.3d 816, 820-21 (9th
Cir. 2016).
115 See, e.g., United States v. Jimenez, 895 F.3d 228, 232 (2d Cir. 2018); Silvester v. Harris, 843 F.3d 816, 820-21 (9th
Cir. 2016).

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Amendment, courts next ask whether, under some type of means-end scrutiny (described in more
detail below), the law is constitutional under that standard of review.116
The Seventh Circuit stands out among the circuit courts of appeal for, at times, taking a somewhat
different approach in the two-step analysis. In recent cases the court has declined, at step two, to
dig “deeply into the ‘levels of scrutiny’ quagmire.”117 Instead, the court evaluates “the strength of
the government’s justification for restricting or regulating the exercise of Second Amendment
rights.”118 When the firearm restriction implicates core Second Amendment rights, the Seventh
Circuit has suggested that the government must make a “rigorous showing” that may resemble
something close to strict scrutiny.119 For less severe burdens, the court requires the government to
make a “strong showing” that a firearm regulation bears a “substantial relation” to an important
governmental objective—a standard that resembles the intermediate scrutiny standard of
review.120 It is also worth noting that, although the D.C. Circuit has applied the two-step approach
when evaluating firearm legislation,121 the newest member of the Supreme Court bench—Justice
Kavanaugh—advocated for a different approach while serving as a judge on the D.C. Circuit,
arguing that: “In my view,” he stated, “Heller and McDonald leave little doubt that courts are to
assess gun bans and regulations based on text, history, and tradition, not by a balancing test such
as strict or intermediate scrutiny.”122

Step One: Scope of Second Amendment Protection
The first question in the two-part framework asks whether the challenged law targets conduct
within the scope of the Second Amendment’s protections. In making this determination, the
reviewing courts typically engage in a textual and historical inquiry into the original meaning of
the right, as the Supreme Court majority did in Heller.123 Yet, even after concluding that the
challenged regulation does not burden protected activity, courts, at times, have applied step two
out of an “abundance of caution,” given the lack of guidance from the Supreme Court as to how
courts should analyze Second Amendment claims.124

116 See id.
117 United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010) (en banc).
118 Ezell, 651 F.3d at 703.
119 See id. at 708. For a description of strict scrutiny, see infra section “Step Two: Applicable Standard of Review.”
120 Skoien, 614 F.3d at 641-42; see also Ezell, 651 F.3d at 708 (“In Skoien we required a ‘form of strong showing’—

a/k/a ‘intermediate scrutiny’—in a Second Amendment challenge.”); Nat’l Rifle Ass’n of Am., Inc. v. ATF, 700 F.3d
185, 194 (5th Cir. 2012) (commenting that Skoien “eschew[ed] the two-step framework . . . but appl[ied] intermediate
scrutiny to a categorical restriction); United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010) (noting that the
Seventh Circuit’s test in Skoien resembles intermediate scrutiny). For a description of intermediate scrutiny, see infra
section “Step Two: Applicable Standard of Review.”
121 Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011) (“We accordingly adopt, as have
other circuits, a two-step approach to determining the constitutionality of the District’s gun laws.”). But see Wrenn v.
District of Columbia, 864 F.3d 650, 664-67 (declining to review under any tier of scrutiny a D.C. firearm law that the
court viewed as a “total ban” on exercising “core” Second Amendment activity).
122 Heller II, 670 F.3d at 1271 (Kavanaugh, J., dissenting).
123 See, e.g., Ezell, 651 F.3d at 701-02; Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013); United States v.
Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Nat’l Rifle Ass’n of Am., 700 F.3d at 194.
124 See, e.g., Nat’l Rifle Ass’n of Am., 700 F.3d at 204; see also Woollard, 712 F.3d at 875 (“We are not obliged to
impart a definitive ruling at the first step . . . . And indeed, we and other courts of appeals have sometimes deemed it
prudent to instead resolve post-Heller challenges to firearm prohibitions at the second step.”).

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“Longstanding” and “Presumptively Lawful” Regulations
For certain types of firearms regulations, some courts ask under step one whether the challenged
regulation is “longstanding” and “presumptively lawful” and, if the answer is in the affirmative,
the inquiry ends.125 This analysis derives from the passage in Heller in which the Supreme Court
announced that “nothing in our opinion should be taken to cast doubt on longstanding
prohibitions” that the Court considered to be “presumptively lawful,” on the possession of
weapons by certain categories of persons and in certain “sensitive places,” as well as restrictions
on possessing and selling certain types of weapons.126 In particular, the Court mentioned that such
laws include those prohibiting felons and the mentally ill from possessing weapons; forbidding
firearms from being carried in schools and government buildings; and imposing conditions on the
commercial sale of firearms.127 This list was not meant to be exhaustive, and the Court did not
elaborate further.128 Some scholars have dubbed this passage Heller’s “safe harbor,” intimating
that restrictions similar to those listed in Heller would be found constitutional.129 Dissimilarly, at
least one circuit court has said that if a firearms regulation is “longstanding,” it is not
automatically constitutional but, rather, “enjoy[s] more deferential treatment” at step two.130
Whether at step one or two, the federal courts have grappled with what makes a particular firearm
restriction “longstanding” and “presumptively lawful.” Laws aligning neatly with those
specifically recited by the Heller majority have been upheld, in some courts, as falling into
Heller’s safe harbor.131 For laws falling outside those specified in Heller, the courts have
generally found that a regulation can be longstanding even without a “precise founding-era
analogue.”132 This is so because laws that the Supreme Court cited as “longstanding” in Heller,
like laws barring felons and the mentally ill from possessing firearms, were not statutorily
prohibited until the mid-twentieth century.133 Conversely, other courts have observed the “relative
futility of ‘pars[ing] these passages of Heller as if they contain an answer’” to whether certain
gun prohibitions are valid.134 Additionally, one circuit court has criticized placing regulations into
125 See Jordan E. Pratt, A First Amendment-Inspired Approach to Heller’s “Schools” and Government Buildings,”

92 NEB. L. REV. 537, 562 (2014) (“While most of the federal circuits have settled on a bifurcated scope-scrutiny
framework for dealing with Second Amendment challenges, they disagree on where to place Heller’s ‘presumptively
lawful regulatory measures’ on that framework. Some circuits treat them as categorical exceptions that either
presumptively or conclusively burden conduct that falls completely outside the scope of the Second Amendment.”).
126 See District of Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008). Courts have pondered the weight to give
that passage in response to assertions that it is dicta that need not be followed, but courts have generally given it great
weight, noting, for example, that “it was in fact an important emphasis upon the narrowness of the holding itself and it
directly informs the holding in that case.” See, e.g., Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1124 (10th Cir. 2015).
127 Heller, 554 U.S. 626-27.
128 Id. at 626-27 & n.26.
129 See, e.g., Stephen Kiehl, Comment, In Search of a Standard: Gun Regulations after Heller & McDonald, 70 MD. L.
REV. 1131, 1142-44 (2011); Brannon P. Denning & Glenn H. Reynolds, Heller, High Water(Mark)? Lower Courts &
The New Right to Keep & Bear Arms, 60 HASTINGS L.J. 1245, 1247-60 (2009).
130 See Teixeira v. County of Alameda, 882 F.3d 1047, 1056 (9th Cir. 2016).
131 See Kiehl, supra note 126, at 1142-44; see also United States v. Phillips, 827 F.3d 1171, 1174 (9th Cir. 2016)
(concluding that § 922(g)(1) falls into Heller’s safe harbor); United States v. Humphrey, 753 F.3d 813, 818 (8th Cir.
2014) (same); but see United States v. Williams, 616 F.3d 685, 692-94 (applying intermediate scrutiny to analysis of
constitutionality of felon-in-possession statute).
132 Nat’l Rifle Ass’n of Am., Inc. v. ATF, 700 F.3d 185, 196 (5th Cir. 2012); see also Untied States v. Skoien, 614 F.3d
638, 641 (7th Cir. 2010) (en banc) (“We do take from Heller the message that exclusions need not mirror limits that
were on the books in 1791.”).
133 Nat’l Rifle Ass’n of Am., 700 F.3d at 196.
134 See United States v. Booker, 644 F.3d 12, 23 (1st Cir. 2011) (quoting Skoien, 614 F.3d at 640).

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the so-called “safe harbor” because, in its view, that approach is too similar to rational-basis
review, which Heller rejected.135
Additionally, the circuit courts have been attempting to decipher why the Supreme Court
designated certain firearms restrictions as presumptively lawful.136 Some courts have interpreted
Heller’s discussion of presumptively lawful “longstanding prohibitions” on certain firearms to
mean that such firearms are outside the scope of the Second Amendment.137 Others presume,
subject to rebuttal, that a longstanding regulation is unprotected by the Second Amendment and
thus lawful.138 Yet another interpretation that has been offered is that longstanding regulations are
lawful not because they are outside the scope of the Second Amendment, but because, despite
burdening protected activity, they would survive analysis under any standard of scrutiny.139 So
unlike the first two interpretations, which inquire into whether a regulation is presumptively
lawful, under this latter view, the inquiry would take place during step two.

Step Two: Applicable Standard of Review
At step two, most courts analyze the challenged regulation under a particular level of scrutiny.
Typically, constitutional claims are evaluated under rational basis, intermediate, or strict
scrutiny.140 Rational basis review is the most deferential to legislatures, with courts asking
whether a statute is rationally related to a legitimate government purpose.141 Under strict
scrutiny—the most exacting standard of review—the government must show that the regulation
furthers a compelling governmental interest and is narrowly tailored to serve that interest.142 In
between those two is intermediate scrutiny, in which a court asks whether (1) the regulation
furthers a substantial or important governmental interest; (2) there is a reasonable or substantial
fit between the asserted interest and the challenged law; and (3) the restriction is no greater than
necessary to further that interest.143 Under this method, “the fit needs to be reasonable,” but “a
perfect fit is not required.”144

135 See United States v. Greeno, 679 F.3d 510, 517-18 (6th Cir. 2012). For a description of rational basis review,

see infra “Step Two: Applicable Standard of Review.”
136 See, e.g., United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010); see also Jeff Golimowski, Note, Pulling the
Trigger: Evaluating Criminal Gun Laws in a Post-Heller World, 49 AM. CRIM. L. REV. 1559, 1601-02 (2012)
(“[L]ower courts are struggling to determine how to address existing gun laws because Heller did not explain why
some laws seeming to restrict the Second Amendment right are presumptively lawful.”).
137 See United States v. Huet, 665 F.3d 588, 600 (3d Cir. 2012) (“[T]he longstanding limitations mentioned by the
Court in Heller are exceptions to the right to bear arms.”); Nat’l Rifle Ass’n of Am., 700 F.3d at 196; United States v.
Bena, 664 F.3d 1180, 1183 (8th Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010).
138 Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 686, 690 (6th Cir. 2016) (en banc); Heller II, 670 F.3d 1244,
1253 (D.C. Cir. 2011); United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010).
139 Nat’l Rifle Ass’n of Am., 700 F.3d at 196; Marzzarella, 614 F.3d at 91.
140 See Mario Barnes & Erwin Chemerinsky, The Once & Future Equal Protection Doctrine?, 43 CONN. L. REV. 1059,
1076-90 (2011); Ashutosh Bhagwat, Hard Cases and the (D)evolution of Constitutional Doctrine, 30 CONN. L. REV.
961, 963 (1998); see generally United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
141 See, e.g., U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 184 (1980); Bowman v. United States, 563 F.3d 765,
775-76 (6th Cir. 2008).
142 See, e.g., Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2231 (2015); Republican Party of Minn. v. White, 416
F.3d 738, 749 (8th Cir. 2005).
143 See, e.g., Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249 (2010); Drake v. Filko, 724 F.3d
426, 436 & n.14 (3d Cir. 2013).
144 United States v. Staten, 666 F.3d 154, 162 (4th Cir. 2011); see also N.Y State Rifle & Pistol Ass’n v. Cuomo, 804
F.3d 242, 261 (2d Cir. 2015) (“So long as the defendants produce evidence that ‘fairly support[s]’ their rationale, the

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Heller provided little guidance on how courts ought to review Second Amendment claims.145 The
Supreme Court majority seemed to reject rational basis, as well as Justice Breyer’s proposed
interest-balancing inquiry, as adequate analytical tools.146 In the majority opinion, though, the
Court made numerous comparisons between the rights secured by the First and Second
Amendments.147 Accordingly, to determine the applicable level of scrutiny, courts have looked to
First Amendment jurisprudence for guidance.148 The Supreme Court’s First Amendment
jurisprudence applies strict scrutiny to laws that regulate the content of a message.149 But if a law
regulates only the time, place, or manner of how a message is conveyed, that law is subject to
intermediate scrutiny.150 As in that context, in Second Amendment challenges courts typically will
“consider the nature of the conduct being regulated and the degree to which the challenged law
burdens the right.”151 Thus, “[a] less severe regulation—a regulation that does not encroach on the
core of the Second Amendment—requires a less demanding means-end showing.”152 In that case,
courts apply a form of intermediate scrutiny to Second Amendment challenges.153 For instance, in
United States v. Masciandaro, the Fourth Circuit drew a line between firearm possession in the
home versus outside the home, concluding that strict scrutiny would apply to the former and
intermediate scrutiny to the latter:
We assume that any law that would burden the “fundamental,” core right of self-defense
in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move
outside the home, firearm rights have always been more limited, because public safety
interests often outweigh individual interests in self-defense.154

laws will pass constitutional muster” under intermediate scrutiny (quoting City of Los Angeles v. Alameda Books, Inc.
535 U.S. 425, 438 (2002))).
145 See District of Columbia v. Heller, 554 U.S. 570, 634 (2008) (noting that Justice Breyer, in dissent, “criticized [the
majority] for declining to establish a level of scrutiny for evaluating Second Amendment restrictions.”).
146 Id. at 628 n.27, 634-35 (“If all that was required to overcome the right to keep and bear arms was a rational basis,
the Second Amendment . . . would have no effect.”); see Friedman v. City of Highland Park, Ill., 784 F.3d 406, 410
(7th Cir. 2015) (“[I]f the Second Amendment imposed only a rational basis requirement, it wouldn’t do anything.”);
United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010) (“Heller left open the level of scrutiny applicable to review
a law that burdens conduct protected under the Second Amendment, other than to indicate that rational-basis review
would not apply in this context.”).
147 See Chester, 628 F.3d at 682.
148 See, e.g., United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013); Chester, 628 F.3d at 682 (“Given Heller’s
focus on “‘core’ Second Amendment conduct and the Court’s frequent references to First Amendment doctrine, we
agree with those who advocate looking to the First Amendment as a guide in developing a standard of review for the
Second Amendment.”); see also Lauren Paglini, Comment, How Far Will the Strictest State Push the Limits: The
Constitutionality of California’s Proposed Gun Law Under the Second Amendment, 23 AM. U. J. GENDER SOC. POL’Y &
L. 459, 469 (2015).
149 See, e.g., Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2231 (2015).
150 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989); Ross v. Early, 746 F.3d 546, 552 (4th Cir. 2014).
151 See, e.g., Kolbe v. Hogan, 813 F.3d 160, 179 (4th Cir. 2016) (internal quotation marks and citation omitted);
Chovan, 735 F.3d at 1138; Nat’l Rifle Ass’n of Am. v. ATF, 700 F.3d 185, 195 (5th Cir. 2012).
152 See, Nat’l Rifle Ass’n of Am., 700 F.3d at 195.
153 See, e.g., id.
154 United States v. Masciandaro, 638 F.3d 458, 470-71 (4th Cir. 2011) (citing Heller); see also Gould v. Morgan, 907
F.3d 659, 672 (1st Cir. 2018) (“[W]e hold that the core right protected by the Second Amendment is—as Heller
described it—the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’”) (quoting
District of Columbia v. Heller, 554 U.S. 570, 635 (2008)); Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir.
2015) (“If Second Amendment rights apply outside the home, we believe they would be measured by the traditional
test of intermediate scrutiny.”); Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“What we know
from [Heller and McDonald] is that Second Amendment guarantees are at their zenith within the home.”).

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Borrowing further from First Amendment jurisprudence, several courts have asked whether a
firearm law regulates only the “time, place, and manner” in which a person may exercise Second
Amendment rights.155 If so, intermediate scrutiny would be warranted.156 Finally, based on Heller,
most courts have viewed rational-basis review as “off the table,” leaving strict and intermediate
scrutiny—the two categories of heightened scrutiny—for the courts to choose from.157

Post-Heller Rulings on the Constitutionality of
Federal and State Firearm Regulations
Heller largely left unresolved much of the “who, what, where, when, and why” of Second
Amendment protections.158 The Supreme Court did make clear, however, that the Second
Amendment (1) applies to law-abiding citizens who seek to use firearms for lawful purposes,
particularly for self-defense in the home; and (2) does not protect dangerous and unusual
weapons.159 Since Heller and McDonald, the lower courts have been attempting to apply Heller
in various Second Amendment challenges to federal, state, and local firearm laws. This section of
the report highlights cases that have examined what classes of persons, weapons, and places are
protected by the Second Amendment, as well as the manner in which such categories may be
permissibly regulated. Concerning federal regulations, most challenges stem from provisions of
the Gun Control Act of 1968, as amended, which places limitations on the commercial sale and
possession of firearms in interstate commerce.160 The challenged state laws and regulations vary;
this report highlights challenges to state assault weapon bans, concealed carry restrictions, firearm
licensing schemes, and the commercial sale of arms, among others.

What Categories of Persons May Be Subject to Firearm
Regulations?
Age Restrictions
Federal laws imposing age restrictions on gun possession and purchasing have survived judicial
challenges. For instance, it is unlawful under 18 U.S.C. § 922(x)(2)(A) for juveniles (statutorily
defined as persons under 18) to possess a handgun (subject to several exceptions).161 Shortly after
155 See, e.g., Chovan, 735 F.3d at 1145-45; United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010). When a law

places a content-neutral, “time, place, and manner” restriction on public speech, only intermediate scrutiny is
warranted. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989).
156 See, e.g., Marzzarella, 614 F.3d at 97.
157 See, e.g., Nat’l Rifle Ass’n of Am., 700 F.3d at 197.
158 See United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012) (internal quotations omitted) (observing
that the right to bear arms is qualified in numerous ways).
159 Phrased differently, “the right to bear arms, as codified in the Second Amendment, affords no protection to
‘weapons not typically possessed by law-abiding citizens for lawful purposes.’” See Marzzarella, 614 F.3d at 90-91
(quoting District of Columbia v. Heller, 554 U.S. 570, 625 (2008)).
160 See Pub. Law No. 90-618, 82 Stat. 1213-2 (1968). The Gun Control Act revised restrictions that had been enacted
by Congress a few months earlier as part of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. Law No.
90-351, section 902, 82 Stat. 226 (1968).
161 See Youth Handgun Safety Act, § 110201(a) of the Violent Crime Control and Law Enforcement Act of 1994, P.L.
103-322, 108 Stat. 1796 (1994). Exceptions to § 922(x)’s ban include possession in the course of employment, farming
at the juvenile’s residence, target practice, hunting, and instruction; possession with prior written consent of the
juvenile’s parent or guardian; possession in connection with membership in the armed services; and use for self-defense

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Heller, a 17-year-old convicted under § 922(x) challenged his conviction in the First Circuit,
arguing that the statute violated his rights under the Second Amendment.162 In particular, he
argued that his interest in self-defense is “just as strong” as that of an adult and that the statute—
enacted in 1994—cannot be viewed as “longstanding.”163 But the First Circuit in United States v.
Rene E. disagreed, concluding that there has been a “longstanding tradition of prohibiting
juveniles from both receiving and possessing handguns,” with age-based gun restrictions being in
place under federal law since 1968 and restrictions on juvenile possession of guns dating back
more than a century at the state level.164 Thus, the court concluded that the federal ban on juvenile
possession of handguns fell within Heller’s safe harbor for longstanding restrictions on firearm
possession.165
Another provision in the Gun Control Act (and corresponding regulations) makes it unlawful for
firearm dealers to sell handguns to persons under 21 years old.166 The law was challenged in
National Rifle Association v. ATF by persons between 18 and 21 years old who argued that it
unconstitutionally burdened their right to keep and bear arms under the Second Amendment.167 In
its ruling, the Fifth Circuit commented that it was “inclined to uphold” the law and regulation
under step one as a longstanding restriction outside the scope of the Second Amendment after
finding historical support for similar firearm restrictions.168 Nevertheless, in an “abundance of
caution,”169 the court proceeded to step two of the two-part test formed after Heller. At step two,
the court applied intermediate scrutiny, concluding that the age-based restriction does not burden
the Second Amendment’s core protections of law-abiding, responsible citizens, because
“Congress found that persons under 21 tend to be relatively irresponsible and can be prone to
violent crime, especially when they have easy access to handguns.”170 Nor does the restriction
prevent 18- to 21-year-olds from possessing handguns for self-defense in the home because, the
court added, these persons may lawfully acquire handguns from responsible parents or
guardians.171 Ultimately, the court concluded that the laws survived intermediate scrutiny because
the government showed a nexus between the firearm restriction and the government’s interest in
keeping guns out of the hands of young persons.172 In doing so, the court gave particular attention
to Congress’s findings after a multi-year investigation that there was a causal relationship
between the easy availability of firearms to persons under 21 and a rise in crime.173

in the home. See 18 U.S.C. § 922(x)(3).
162 United States v. Rene E., 583 F.3d 8 (1st Cir. 2009).
163 Id. at 12.
164 Id. at 12-15.
165 Id. at 15-16.
166 18 U.S.C. § 922(b)(1); 27 C.F.R. § 478.99(b)(1).
167 Nat’l Rifle Ass’n of Am., Inc. v. ATF, 700 F.3d 185 (5th Cir. 2012).
168 Id. at 200-04.
169 Id. at 204.
170 Id. at 205-06.
171 Id. at 206-07. In the dissent from the denial of rehearing en banc, six judges argued that the panel erred in applying
intermediate scrutiny because, in their view, the restriction implicates the core function of the Second Amendment.
See Nat’l Rifle Ass’n of Am., Inc. v. ATF, 714 F.3d 334 (5th Cir. 2013) (dissent from denial of rehr’g en banc). And
even under that lower standard of scrutiny, the dissent would have held the law unconstitutional. See id.
172 Nat’l Rifle Ass’n of Am., 700 F.3d at 207-11.
173 Id. at 207.

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Felons
Under 18 U.S.C. § 922(g)(1), the Gun Control Act makes it is a criminal offense for a felon to
possess a firearm.174 After Heller, the federal circuit courts have unanimously concluded that
§ 922(g)(1) does not violate the Second Amendment.175 In upholding § 922(g)(1), some courts
have relied on the passage in Heller in which the Supreme Court announced that “nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms
by felons.”176 For example, in United States v. Vongxay, the Ninth Circuit rejected an argument
that this proclamation in Heller was mere dicta that the court need not follow and upheld the
challenged provision as constitutional.177 Other courts, like the D.C. Circuit, have opined that
“history and tradition support the disarmament of those who were not (or could not be) virtuous
members of the community,” and thus all felons are excluded from the Second Amendment.178
Yet some courts have opined, however, that the Supreme Court, “by describing the felon
disarmament ban as ‘presumptively lawful,’” meant that even if a facial challenge were to fail,
the presumption could be rebutted in an as-applied challenge.179 For example, the Third Circuit
sitting en banc in Binderup v. Attorney General United States of America held that a person could
rebut the presumption in an as-applied challenge to § 922(g)(1) if that person could sufficiently
distinguish himself (and the crime of conviction) from the “traditional justifications” for
excluding convicted felons from possessing firearms.180 The Fourth Circuit held more narrowly in
Hamilton v. Pallozzi that generally, a felony conviction “removes one from the class of ‘lawabiding, responsible citizens,’ for the purposes of the Second Amendment,” unless the person
174 Under the statute, a felon is a person “who has been convicted in any court of a crime punishable by imprisonment

for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Some states have similar provisions. See, e.g., CAL. PENAL
CODE § 29800; ME. REV. STAT. ANN. tit. 15, § 393.
175 See, e.g., Medina v. Whitaker, 913 F.3d 152, 155-56 (D.C. Cir. 2019) (collecting cases); United States v. Moore,
666 F.3d 313, 316-17 (4th Cir. 2012) (collecting cases).
176 See, e.g., Moore, 666 F.at 318 (“To the extent that Moore, or any similarly situated defendant, raises a facial
challenge to the validity of § 922(g)(1), the clear declaration in Heller that such a felon in possession laws are a
presumptively lawful regulatory measure resolves that challenge fairly quickly.”); see also United States v. Barton, 633
F.3d 168, 171-72 (3d Cir. 2011); United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir. 2010); United States v.
Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010).
177 Vongxay, 594 F.3d at 1115; see also Barton, 633 F.3d at 171-72 (rejecting contention that the Heller passage is
“mere dicta”); Rozier, 598 F.3d at 771 n.6 (same).
178 See Medina, 913 F.3d at 159-60.
179 See Binderup v. Attorney Gen. of U.S., 836 F.3d 336, 347, 350 (3d Cir. 2016) (en banc); Kanter v. Barr, —F.3d—,
No. 18-1478, 2019 WL 1219564, at *5 (7th Cir. Mar. 15, 2019) (listing circuits that “have left room for as-applied
challenges” to 18 U.S.C. § 922(g)(1)); an as-applied challenge “argues that a law is unconstitutional as enforced against
the plaintiffs before the court,” as opposed to a facial challenge to a law’s constitutionality, which is “an effort to
invalidate the law in each of its applications, to take the law off the books completely.” See Speet v. Schuette, 726 F.3d
867, 871-72 (6th Cir. 2013) (internal quotations marks and citations omitted). For as-applied challenges to 18 U.S.C. §
922(g)(1), a defendant would have to “show facts about his conviction that distinguishes him from other convicted
felons encompassed by the § 922(g)(1) prohibition.” Medina, 913 F.3d at 160; see also United States v. Adams, 914
F.3d 602, 605 (8th Cir. 2019) (“At a minimum, to succeed on an as-applied challenge, [the litigant] must establish (1)
that the Second Amendment protects his particular conduct, and (2) that his prior felony conviction is insufficient to
justify the challenged regulation of Second Amendment rights.”).
180 836 F.3d 336, 347 (3d Cir. 2016) (en banc), cert. denied, 137 S. Ct. 2323 (2017). Although a majority of the en banc
court agreed on that basic framework for evaluating an as-applied challenge, there was no majority agreement as to
what the traditional justifications were for denying felons Second Amendment rights, and how one could distinguish
himself from those justifications. Compare id. at 348-50 (Ambro, J.) (concluding that felons were traditionally barred
from accessing firearms because the Second Amendment protects a “virtuous citizenry,” and persons who commit
serious crimes cannot categorized as such), with id. at 367-75 (Hardiman, J., concurring) (concluding that felons were
traditionally barred from accessing firearms because of their propensity to commit violence).

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receives a pardon or the law defining the felony at issue is found unconstitutional or otherwise
unlawful.181 Still, the court left open the possibility that the presumption could be rebutted for
persons convicted of certain crimes labeled as misdemeanors but falling under the scope of §
922(g)(1) because of the potential term of imprisonment accompanying that misdemeanor.182 In
contrast, other courts have cautioned that “the highly-individualized approach” of as-applied
challenges “raises serious institutional and administrative concerns.”183
One court even held that an indictment under § 922(g)(1) was constitutional even as applied to a
person who was not a felon forbidden from possessing a firearm, but who was charged with
aiding and abetting a felon to possess a firearm in violation of that provision.184 In United States
v. Huet, the defendant was indicted under § 922(g)(1) and argued that the indictment was based
solely on the government’s evidence that she possessed a rifle in her home, which she shared with
a convicted felon.185 The district court dismissed the indictment on the ground that it would
permit “‘the total elimination of the [Second Amendment] right of a sane, non-felonious citizen to
possess a firearm, in her home, simply because her paramour is a felon.’”186 The Third Circuit
disagreed, concluding that “a properly-brought aiding and abetting charge does not burden
conduct protected by the Second Amendment.”187 Ultimately, the Third Circuit concluded that the
indictment’s dismissal was premature because the government must be allowed to further develop
the evidentiary record to show that the defendant did more than merely possess a weapon in a
home shared with a convicted felon, but actually aided and abetted that felon in possessing the
firearm himself.188 If that was the case, the defendant’s conduct would be beyond the scope of the
Second Amendment given Heller’s comment that “the Second Amendment does not afford
citizens a right to carry arms for ‘any purpose.’”189 And aiding and abetting a convicted felon in
possessing a firearm, the court concluded, is not a protected right.190

Misdemeanants of Domestic Violence
A 1996 amendment to the Gun Control Act, commonly referred to as the Lautenberg Amendment
and codified at 18 U.S.C. § 922(g)(9), prohibits persons convicted of a misdemeanor crime of
domestic violence from possessing firearms.191 Thus far, reviewing courts have uniformly upheld
181 848 F.3d 614, 626 (4th Cir. 2017).
182 Id. at 626 n.11; see also Schrader v. Holder, 704 F.3d 980, 991 (D.C. Cir. 2013) (commenting, in dicta, that had the

defendant raised an as-applied challenge to 18 U.S.C. § 922(g)(1), rather than arguing that it is unconstitutional as
applied to all common-law misdemeanants, “we would hesitate to find [the defendant] outside the class of ‘lawabiding, responsible citizens’ whose possession of firearms is, under Heller, protected by the Second Amendment”).
183 Kanter, 2019 WL at *10; see also United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011) (asserting that
allowing as-applied challenges to 18 U.S.C. § 922(g)(1) “to countless variations in individual circumstances, would
obviously present serious problems of administration, consistency and fair warning”).
184 United States v. Huet, 665 F.3d 588 (3d Cir. 2012) (discussing defendant’s indictment for acting in violation of 18
U.S.C. § 922(g)(1) and the aiding and abetting statute, 18 U.S.C. § 2).
185 Id. at 601.
186
Id. (quoting district court opinion).
187 Id. (emphasis added).
188 Id. at 601-02.
189 Id. at 602 (quoting District of Columbia v. Heller, 554 U.S. 570, 595 (2008)).
190 Id.
191 See P.L. 104-208, § 658, 110 Stat. 371 (1996). The Supreme Court has not addressed the constitutionality of
§ 922(g)(9), but has considered several cases turning on the appropriate construction of the statutory provision.
See, e.g., Voisine v. United States, 136 S. Ct. 2272 (2016) (interpreting whether reckless domestic assault qualifies as a
“misdemeanor crime of violence” under § 922(g)(9)); United States v. Castleman, 134 S. Ct. 1405 (2014) (examining

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the provision against Second Amendment challenges.192 Several circuits have employed
intermediate scrutiny to evaluate § 922(g)(9) and, in doing so, concluded that the firearm
restriction is constitutional.193 For instance, in United States v. Staten, the Fourth Circuit
concluded that there is a reasonable fit between § 922(g)(9) and a substantial governmental
interest—reducing domestic gun violence—because the government had established that
domestic violence in the United States is a serious problem with high rates of recidivism, and,
additionally, the “use of firearms in connection with domestic violence is all too common.”194
Another circuit court, however, concluded that § 922(g)(9) is a presumptively lawful prohibition
on the possession of firearms that need not be evaluated under a particular level of scrutiny.195 In
doing so, the Eleventh Circuit in United States v. White reasoned that § 922(g)(9) was passed, in
part, because Congress had recognized that domestic violence with firearms had not been
remedied by “longstanding felon-in-possession laws,” and thus the court “s[aw] no reason to
exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast
doubt.”196
Additionally, the Seventh Circuit sitting en banc and using its unique approach197 upheld §
922(g)(9) as constitutional after concluding that the government made a “strong showing” that
§ 922(g)(9) is substantially related to an important governmental objective.198 In particular, the
court observed that § 922(g)(9) satisfied the government’s objective of keeping firearms out of
the hands of persons likely to continue to use violence (as the government had found of
misdemeanants of domestic violence).199 In addition, studies presented showed high recidivism
rates for domestic abusers and an increased risk of homicide with the presence of a firearm in the
home of a convicted domestic abuser.200

Persons Subject to a Domestic Violence Protective Order
Similarly, 18 U.S.C. § 922(g)(8), which prohibits persons subject to certain domestic violence
protective orders from possessing firearms, has survived post-Heller Second Amendment
challenges.201 For instance, in United States v. Chapman, the Fourth Circuit, applying
the kind of “physical force” required for a crime to be considered a misdemeanor crime of violence under § 922(g)(9));
United States v. Hayes, 555 U.S. 415 (2009) (evaluating whether a predicate offense for a conviction under § 922(g)(9)
must have a domestic relationship as a defining element). Dissenting in Voisine, Justice Thomas seemed to question the
constitutionality of a lifetime ban on misdemeanants of domestic violence. See Voisine, 136 S. Ct. at 2290-92 (Thomas,
J., dissenting).
192 See Stimmel v. Sessions, 879 F.3d 198, 203 (6th Cir. 2018) (collecting cases).
193 666 F.3d 154 (4th Cir. 2011); see also United States v. Chovan, 735 F.3d 1127, 1136-42 (9th Cir. 2013) (applying
strict scrutiny to uphold § 922(g)(9)); United States v. Chester, 628 F.3d 673 (4th Cir. 2010) (rejecting argument that
§ 922(g)(9)) is “presumptively lawful” under Heller and establishing intermediate scrutiny as the appropriate test for
evaluating Second Amendment challenges to § 922(g)(9)).
194 United States v. Staten, 666 F.3d 154, 160-68 (4th Cir. 2011).
195 593 F.3d 1199 (11th Cir. 2010).
196
Id. at 1205-06 (11th Cir. 2010) (internal quotation marks omitted).
197 See supra section “Federal Circuit Courts’ Post-Heller Approach to Second Amendment Analysis.”
198 United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010) (en banc).
199 See id. at 642
200 Id. at 643-45.In addition to the Seventh Circuit, the First Circuit in United States v. Booker used its sister circuit’s
same method of analysis to conclude that § 922(g)(9) passes constitutional muster. 644 F.3d 12, 25-26 (1st Cir. 2011).
201 For the protective order to come within § 922(g)(8)’s scope, it must (1) have been issued after notice and a hearing;
(2) restrain the person from harassing, stalking, or threating an intimate partner (or that partner’s child), or from
engaging in conduct that would place that partner in reasonable fear of bodily injury to the partner or child; and

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intermediate scrutiny, assumed without deciding that a person subject to a qualifying domestic
violence restraining order fell within the Second Amendment’s protections and concluded that
§ 922(g)(8) does not unconstitutionally burden those protections.202 Intermediate scrutiny was
appropriate because, the court reasoned, a person subject to a domestic violence restraining order
is not entitled to the benefit of the “core right identified in Heller—the right of a law-abiding,
responsible citizen to possess and carry a weapon for self-defense.”203 In applying intermediate
scrutiny the Fourth Circuit concluded that the government established a reasonable fit between
§ 922(g)(8) and the government’s substantial interest in reducing domestic gun violence.204 In
particular, the court noted that § 922(g)(8) (among other things) “by its own terms, explicitly
prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner
or child that would reasonable be expected to cause bodily injury.”205 Additionally, the court
observed that § 922(g)(8)’s “prohibitory sweep [is] exceedingly narrow” because the provision
applies only to restraining orders currently in force.206
Using a different approach, but reaching the same ultimate result, the Eighth Circuit in United
States v. Bena concluded at step one of its analysis that § 922(g)(8) is constitutional on its face,
reasoning that “[i]nsofar as § 922(g)(8) prohibits possession of firearms by those who are found
to represent a ‘credible threat to the physical safety of [an] intimate partner or child . . . it is
consistent with a common-law tradition that the right to bear arms is limited to peaceable or
virtuous citizens.”207
Additionally, in an as-applied challenge, the Fourth Circuit in United States v. Mahin upheld the
conviction of a person subject to a domestic violence protective order who had been found in
violation of § 922(g)(8) by renting a firearm at a shooting range.208 The court rejected the
defendant’s argument that possessing a firearm “for a limited period of time in the controlled
environment of a commercial shooting range” is conduct that “must be exempted from
prosecution” and is not the kind of conduct § 922(g)(8)’s seeks to criminalize.209 Instead, the
court reasoned that the defendant, “possessed the power . . . to leave the premises and use [a
firearm] against those that sought the protections of the protective order.”210 The court did not
find it relevant that the defendant did not actually leave the shooting range with the handgun and
incite violence, because the intermediate scrutiny standard of review applicable to the challenged
restriction, in the court’s view, “has never been held to require a perfect end-means fit.”211
Accordingly, the court concluded that “[i]t is sufficient that § 922(g)(8) rests on an established
(3) include a finding that the person represents a credible threat to the physical safety of the partner or child, or
prohibits the use, attempted use, or threatened use of physical force against that partner or child. 18 U.S.C. § 922(g)(8).
202 666 F.3d 220, 225 (4th Cir. 2012); see also United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (upholding
§ 922(g)(8) under intermediate scrutiny).
203 United States v. Chapman, 666 F.3d 220, 226 (4th Cir. 2012).
204 Id. at 226-31.
205 Id. at 230.
206 Id. at 228. Additionally, the court noted that that applicable protection orders may be issued only after notice and a
hearing in which the person has an opportunity to participate, thus satisfying “the fundamental requirements of
procedural due process.” Id. at 228.
207 United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011). The court left open whether § 922(g)(8) could be
unconstitutional as applied to a person subject to an order entered without a finding of dangerousness. Id. at 1185.
208 United States v. Mahin, 668 F.3d 119, 127-28 (4th Cir. 2012).
209 Id. at 127.
210 Id.
211 Id. at 127-28

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link between domestic abuse, recidivism, and gun violence and applies to persons already
individually adjudged in prior protective order to pose a future threat of abuse.”212

Unlawful Drug Users and Addicts
18 U.S.C. § 922(g)(3), which criminalizes the possession of firearms by persons who unlawfully
use or are addicted to any controlled substance, has been upheld as constitutional by several
circuit courts.213 In particular, circuit courts of appeals have upheld § 922(g)(3) under the Second
Amendment because the ban prohibits conduct similar to those listed in Heller as presumptively
lawful, namely felons and the mentally ill.214 For instance, the Ninth Circuit in United States v.
Dugan noted that habitual drug users, like felons and the mentally ill, “more likely will have
difficulty exercising self-control, particularly when they are under the influence of controlled
substances.”215
Other circuits, however, have required the government to put forth evidence demonstrating a
reasonable connection between § 922(g)(3) and an important governmental interest.216 For
instance, in United States v. Carter the Fourth Circuit initially vacated the conviction of a person
convicted under § 922(g)(3) for possessing a firearm while unlawfully using marijuana, and the
court remanded the case to the district court for the parties to develop the record and make
arguments as to whether the conviction withstood intermediate scrutiny.217 In evaluating the
defendant’s argument, the circuit court assumed without deciding that the defendant maintains
Second Amendment protection notwithstanding his drug use.218 And the court found on the record
before it that the government had not demonstrated a connection between drug use and violence
and thus had not shown a reasonable fit between § 922(g)(3) and its goal of keeping guns out of
the hands of irresponsible and dangerous persons.219 Unlike in other cases, the government had
not provided any studies, empirical data, or legislative findings to support the restriction, and
instead it had argued that “the fit was a matter of common sense.”220 However, the court noted
that the government’s burden on remand “should not be difficult to satisfy,” given that evidence
of danger of mixing drugs and guns was, in the court’s view, “abundantly available.”221 And on
remand, the government indeed presented numerous studies showing a correlation between
violent crime and drug use, which the Fourth Circuit ultimately found to substantiate the

212 Id. at 128.
213 18 U.S.C. § 922(g)(3). The term “controlled substance” is defined in section 102 of the Controlled Substances Act,

21 U.S.C. § 802. See id. Habitual drug use must be contemporaneous with gun possession to fall within the prohibition
at 18 U.S.C. § 922(g)(3). See, e.g., United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (collecting cases).
214 See United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010) (Ҥ 922(g)(3) has the same historical pedigree as other
portions of § 922(g) which are repeatedly upheld by numerous courts since Heller. . . . As such, we find that
§ 922(g)(3) is the type of ‘longstanding prohibition[] on the possession of firearms’ that Heller declared presumptively
lawful.”); see also United States v. Dugan, 657 F.3d 998, 999-1000 (9th Cir. 2011).
215 See Dugan, 657 F.3d at 999-1000.
216 For example, the Seventh Circuit in United States v. Yancey concluded that § 922(g)(3) “is substantially related to
the important government interest in preventing violent crime,” noting that [a]mple academic research confirms the
connection between drug use and violent crime.” 621 F.3d 681, 682-87 (7th Cir. 2010).
217 669 F.3d 411 (4th Cir. 2012).
218 Id. at 416.
219 Id. at 417-21.
220 Id. at 419.
221 Id. at 418-19.

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government’s contention that “disarming drug users reasonably serves the important
governmental interest of protecting the community from gun violence.”222

Aliens
Another provision of the Gun Control Act, 18 U.S.C. § 922(g)(5), prohibits unlawfully present
aliens and most categories of nonimmigrant visa holders from possessing firearms. In
determining whether the Second Amendment covers non-U.S. citizens, courts have looked to
whether such persons come within the ambit of “the people” as used in the text of Second
Amendment.223 This inquiry has produced a circuit split. Some courts that have considered the
issue have concluded that “the people” does not encompass unlawfully present aliens.224 For
instance, the Fifth Circuit in United States v. Portillo-Munoz recounted that the Supreme Court in
Heller noted that “the people” include “law-abiding, responsible citizens” and “all members of
the political community.”225 Because unlawfully present aliens fit neither description, the court
concluded that they are granted no rights by the Second Amendment.226 Moreover, to bolster its
conclusion that the restriction in § 922(g)(5) is constitutional, the court added that “Congress has
the authority to make laws governing the conduct of aliens that would be unconstitutional if made
to apply to citizens.”227
However, a number of circuit courts, while ultimately holding § 922(g)(5) to be constitutional,
have opined that “the people,” as used in the Second Amendment, could include some unlawfully
present aliens.228 For example, in United States v. Meza-Rodriguez, the Seventh Circuit analyzed
§ 922(g)(5) as applied to an alien who was brought the United States as a young child.229 In
determining whether the defendant was protected by the Second Amendment, the court analyzed
222 United States v. Carter, 750 F.3d 462, 465-70 (4th Cir. 2014). The Ninth Circuit recently rejected a challenge to

§ 922(g)(3) as unconstitutional as applied to a holder of a Nevada medical marijuana card. See Wilson v. Lynch, 835
F.3d 1083 (9th Cir. 2016). Current federal law prohibits possession and distribution of marijuana for both recreational
and medicinal purposes, but a number of states have established medical marijuana regulatory regimes. See CRS
Report R43437, Marijuana: Medical and Retail—An Abbreviated View of Selected Legal Issues, by Todd Garvey,
Charles Doyle, and David H. Carpenter; CRS Report R43435, Marijuana: Medical and Retail—Selected Legal Issues,
by Todd Garvey, Charles Doyle, and David H. Carpenter. And Congress, most recently through a FY2017
appropriations act, has prohibited the Department of Justice from using funds to “prevent” states that have already
legalized medical marijuana from “implementing their own state laws that authorize the use, distribution, possession, or
cultivation of medical marijuana.” Consolidated Appropriations Act, 2017, P.L. 115-31, § 537(2017) (extended into
part of FY2018 by the Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief
Requirements Act, 2017, P.L. 115-56). In Wilson v. Lynch, the Ninth Circuit accepted the challenger’s contention that
she is not a user of marijuana and holds a state card that would permit her to use marijuana without violating state law
only for political reasons. Wilson, 835 F.3d at 1091. Nevertheless, the Ninth Circuit found a reasonable fit between the
law and the government’s objective in preventing gun violence, resulting in the challenged restriction surviving
intermediate scrutiny analysis. Id. at 1091-95. The court added that “it is eminently reasonable for federal regulators to
assume that a registry cardholder is much more likely to be a marijuana user than an individual who does not hold a
registry card.” Id. at 1094.
223 See, e.g., United States v. Putillo-Munoz, 643 F.3d 437, 439-40 (5th Cir. 2011).
224 See Putillo-Munoz, 643 F.3d at 439-40; United States v. Flores, 663 F.3d 1022 (8th Cir. 2011).
225 Id. at 440 (quoting District of Columbia v. Heller, 554 U.S. 570 (2008)).
226 Id.; see also United States v. Carpio-Leon, 701 F.3d 974, 978-79 (4th Cir. 2012) (declining to decide whether “the
people” includes unlawfully present aliens but concluding that because such persons are not law-abiding, responsible
citizens, they are beyond the scope of the Second Amendment).
227 Putillo-Munoz, 643 F.3d at 441.
228 See United States v. Torres, 911 F.3d 1253, 1261 (9th Cir. 2019); United States v. Meza-Rodriguez, 798 F.3d 664
(7th Cir. 2015); United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012).
229 Meza-Rodriguez, 798 F.3d at 666-67.

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the meaning of “the people.”230 Like the Fifth Circuit, the Seventh Circuit found that Heller links
Second Amendment rights to law-abiding citizens, which, as someone who entered the country
illegally, Meza-Rodriguez technically is not.231 But the court also concluded that the Supreme
Court was not defining “the people” when making that connection in Heller.232 Accordingly, the
Seventh Circuit relied on the Supreme Court’s earlier opinion in United States v. VerdugoUrquidez, which opined that “the people,” for the purposes of protection under the First, Second,
and Fourth Amendments, “refers to a class of persons who are part of a national community or
who have otherwise developed sufficient connection with this country to be considered part of
that community.”233 The defendant in Meza-Rodriguez met that standard because, the Seventh
Circuit concluded, he had “extensive ties” with the United States, including his 20-year residency
beginning as a child, attendance at U.S. public schools, and close family relationships with
persons in the United States.234 Nevertheless, the court held that § 922(g)(5) is constitutional,
reasoning that the government made a strong showing that its interest in “prohibiting persons who
are difficult to track and have an interest in eluding law enforcement” supports the firearm ban.235
Additionally, the Tenth Circuit in United States v. Huitron-Guizar assumed that unlawfully
present aliens, like the defendant—who also had been in the United States for decades and was
brought to the country as a young child—could assert a Second Amendment right, noting that “we
hesitate to infer from Heller a rule that the right to bear arms is categorically inapplicable to noncitizens.”236 Applying intermediate scrutiny to § 922(g)(5), the court concluded that the law is
constitutional, deferring to Congress’s “constitutional power to distinguish between citizens and
non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.”237
Ultimately, the court found a substantial fit between the government’s interests in crime control
and public safety, and its desire to keep firearms out of the hands of those it deems as
“irresponsible or dangerous.”238

230 Id. at 669.
231 Id.
232 Id.
233 Id. at 670-71 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).
234

Id. at 670-72.

235 Id. at 672-73.
236 United States v. Huitron-Guizar, 678 F.3d 1164, 1168-69 (10th Cir. 2012). The Tenth Circuit also examined

Verdugo-Urquidez but declined to draw any conclusions as to how that case would inform the circuit court’s
interpretation of Heller’s mandates. See id. at 1167-69.
237 Id. at 1170.
238 Id. at 1169-70. Additionally, the Ninth Circuit—after assuming without deciding that certain unlawfully present
aliens could garner Second Amendment protection—upheld under intermediate scrutiny 18 U.S.C. § 922(g)(5). United
States v. Torres, 911 F.3d 1253, 1261-65 (9th Cir. 2019).

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What Categories of Firearms May Be Subject to Government
Regulation?
Assault Weapons and High-Capacity Magazines
Several state “assault weapon”239 bans have been upheld in federal court, including those in the
District of Columbia, New York, Connecticut, and Maryland.240 The Second and D.C. Circuits, in
reviewing those laws, applied intermediate scrutiny and based their decisions on the specific
evidence presented to tie the bans to the asserted state interests. And most recently, the Fourth
Circuit, sitting en banc, concluded that the types of assault weapons banned in Maryland do not
garner Second Amendment protection.
After Heller, the District of Columbia revised its gun laws by enacting the Firearms Registration
Amendment Act of 2008 (FRA).241 The FRA, among other things, banned assault weapons
(including, as relevant here, semiautomatic rifles) and large-capacity magazines capable of
holding more than 10 rounds of ammunition.242 In evaluating the ban’s constitutionality, the D.C.
Circuit assumed that semiautomatic rifles and high-capacity magazines garner Second
239 The term “assault weapon ban” was generally used to describe the Public Safety and Recreational Firearms Act (part

of the Violent Crime Control and Law Enforcement Act of 1994), which established a 10-year prohibition on the
manufacture, transfer, and possession of certain “semiautomatic assault weapons,” as defined in the act, and large
capacity ammunition feeding devices. See P.L. 103-322, 108 Stat. 1796 (1994); CHRISTOPHER S. KOPER, JERRY LEE
CTR. OF CRIMINOLOGY, UNIV. OF PA., UPDATED ASSESSMENT OF THE FEDERAL ASSAULT WEAPONS BAN: IMPACTS OF
GUN MARKETS & GUN VIOLENCE, 1994-2003, REPORT TO THE NATIONAL INSTITUTE OF JUSTICE, UNITED STATES
DEPARTMENT OF JUSTICE 4 (2004), http://tinyurl.com/ycmqeqle. The 1994 law listed numerous weapons that qualified
as “semiautomatic assault weapons.” P.L. 103-322, 108 Stat. 1796 (1994). Additionally, the term “semiautomatic
assault weapons” also applied to: (1) “a semiautomatic rifle that has an ability to accept a detachable magazine and has
at least 2 of—(i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the
weapon; (iii) a bayonet mount; (iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor;
and (v) a grenade launcher”; (2) “a semiautomatic pistol that has an ability to accept a detachable magazine and has at
least 2 of—(i) an ammunition magazine that attaches to the pistol outside of the pistol grip; (ii) a threaded barrel
capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (iii) a shroud that is attached to,
or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand
without being burned; (iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and (v) a
semiautomatic version of an automatic firearm”; and (3) ‘‘a semiautomatic shotgun that has at least 2 of—(i) a folding
or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a fixed
magazine capacity in excess of 5 rounds; and (iv) an ability to accept a detachable magazine.” Id. Because the current
state and local laws bear similarities to the former federal law and because of the common use of the term “assault
weapons bans,” in reference to these laws, for the purposes of this report, state laws, too, will be referred to as “assault
weapons bans.”
240 These laws supplement firearms restrictions found in federal law, which outlaws automatic weapons, like machine
guns. See 18 U.S.C. § 922(o). The circuit courts that have engaged in a post-Heller evaluation of the federal bar on
machine guns have uniformly held that there is no Second Amendment right to possess such weaponry. See, e.g.,
United States v. Henry, 688 F.3d 637, 640 & n.3 (9th Cir. 2012) (collecting cases). For example, in United States v.
Henry, the Ninth Circuit pointed to Heller’s announcement that the country’s history of banning “dangerous and
unusual weapons” limits the Second Amendment right to keep and bear arms and concluded that machine guns are such
weapons and thus not protected by the Second Amendment. 688 F.3d 637, 640 (9th Cir. 2012). The Third Circuit held
the same. United States v. One Palmetto State Armory PA-15 Machinegun, 822 F.3d 136 (3d Cir. 2016). The Fifth
Circuit also concluded that machine guns are outside the scope of the Second Amendment, but only after conducting an
independent inquiry into whether machine guns are “dangerous and unusual” weapons and contending that the Heller
passage is dicta. See Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016).
241 See Allen Rostron, Protecting Gun Rights & Improving Gun Control after District of Columbia v. Heller, 13 LEWIS
& CLARK L. REV. 383, 398 n.71 (2009).
242 Heller II, 670 F.3d 1244, 1249, 1260 (D.C. Cir. 2011).

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Amendment protection but, after applying intermediate scrutiny, concluded that the provision was
constitutional.243 The court chose intermediate scrutiny because the law, in the court’s view, did
not substantially burden the Second Amendment because it did not completely ban handgun
possession—described in Heller as the “quintessential self-defense weapon.”244 Nor, the court
added, did the District’s law prevent a person from having a different, “suitable and commonly
used weapon” (e.g., handguns, non-automatic long guns) for self-defense in the home or
hunting.245 Next, the D.C. Circuit concluded that the ban survived intermediate scrutiny because
the record evidence substantiated the District’s assertion that the ban was substantially related to
protecting police officers and crime control.246 For example, evidence submitted “suggest[ed that]
assault weapons are preferred by criminals and place law enforcement ‘at particular risk . . .
because of their high firepower.’”247 And “the risk ‘posed by military-style assault weapons,”
according to the circuit court, is “‘increased significantly if they can be equipped with highcapacity ammunition magazines’ because, ‘by permitting a shooter to fire more than ten rounds
without reloading, they greatly increase the firepower of mass shooters.’”248
The Second Circuit took a similar approach when analyzing assault weapon bans in New York
and Connecticut, enacted after the shooting at Sandy Hook Elementary School in Newtown,
Connecticut.249 In New York State Rifle & Pistol Association v. Cuomo, the Second Circuit,
applying intermediate scrutiny, upheld provisions banning assault weapons—defined as
semiautomatic weapons with certain enumerated features—and large-capacity magazines capable
of holding more than 10 rounds of ammunition, declaring that the dangers posed by such weapons
“are manifest and incontrovertible.”250 However, the court struck down one provision in each
state’s law. New York’s law also had a “load limit” that banned the possession of a firearm loaded
with more than seven rounds of ammunition.251 The court struck it down on the grounds that the
ban “is entirely untethered from the stated rationale of reducing the number of assault weapons
and large capacity magazines,” and New York “failed to present evidence that the mere existence
of this load limit will convince any would-be malefactors to load magazines capable of holding
ten rounds with only the permissible seven.”252 And Connecticut’s law specifically banned one
non-semiautomatic weapon; the court concluded that it did not pass constitutional muster under

243 Id. at 1261. Similarly, the Ninth Circuit denied a request to enjoin a ban on high-capacity magazines in Sunnyvale,

California (enacted after voters passed a ballot measure establishing the ban), concluding, among other things, that the
government met its burden of showing that the ban was likely to survive intermediate scrutiny. See Fyock v.
Sunnyvale, 779 F.3d 992 (9th Cir. 2015). Based on Sunnyvale’s evidence that large-capacity magazines increase the
lethality in gunshot injuries by allowing more gunshots to be fired, the appellate court concluded the district court did
not abuse its discretion in finding that the ban fit the government’s substantial interest in reducing the danger of gun
violence, especially mass shootings and crimes against law enforcement. Id. at 1000-01.
244 Heller II, 670 F.3d at 1261-62 (quoting District of Columbia v. Heller, 554 U.S. 570, 629 (2008)).
245 Id. at 1262.
246 Id. at 1262-63
247 Id.
248
Id. at 1263.
249 N.Y State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (2d Cir. 2015). Somewhat similar to Heller II, the Second
Circuit chose intermediate scrutiny because the burden imposed by the challenged laws, though substantial, was not, in
the court’s view, severe. Id. at 260. The court reasoned that the laws banned only a limited subset of semiautomatic
firearms—those containing one or more specified military-style features—and magazines, leaving numerous
alternatives for people to exercise core Second Amendment rights. See id.
250 Id. at 247-51.
251 Id. at 249, 264.
252 Id. at 264.

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intermediate scrutiny given the state’s failure to argue how the ban related to a substantial
government interest.253
Taking a different approach, the Seventh Circuit in Friedman v. City of Highland Park evaluated
the constitutionality of a Chicago suburb’s assault weapon ban without applying a particular level
of scrutiny to assess the ban’s constitutionality, but rather, by asking “whether [the] regulation
bans weapons that were common at the time of ratification or those that have ‘some reasonable
relationship to the preservation of a well regulation militia,’ and whether law-abiding citizens
retain adequate means of self-defense.”254 The court noted that features of the banned firearms
were not available at ratification but are now commonly used for military and police purposes
and, thus, “bear a relation to the preservation and effectiveness of state militias.”255 Still, because
states are in charge of militias, the court reasoned, state governments (and other units of local
government) ought to have the authority to decide when civilians may have military-grade
firearms in order to have them ready for when the militia is called to duty.256 The court also noted
that other firearms, including long guns, pistols, and revolvers, were still available for selfdefense.257 Accordingly, the Seventh Circuit concluded that the assault weapons ban fell within
the limits established by Heller and thus was constitutional.258 In 2015, the Supreme Court denied
granting a petition for a writ of certiorari over the dissent of Justices Thomas and Scalia.259 In his
dissent, Justice Thomas argued that the Seventh Circuit (and other circuits holding similarly)
“upheld categorical bans on firearms that millions of Americans own for lawful purposes” and
suggested that those bans ran afoul of Heller and McDonald.260
Lower courts have continued to review the constitutionality of assault weapon bans. Recently, the
Fourth Circuit, sitting en banc in Kolbe v. Hogan, held that the Second Amendment does not
protect the assault weapons and large-capacity magazines that Maryland had made unlawful.261 In
so holding, the court relied on a passage in Heller stating that “‘weapons that are most useful in
military service—M-16 rifles and the like—may be banned’ without infringement upon the
Second Amendment.”262 The court viewed Heller as drawing a line “between weapons that are
most useful in military service,” which garner no Second Amendment protection, and “those that
253 Id. at 269. However, the court added that “[w]e do not foreclose the possibility that States could in the future present

evidence to support such a prohibition. Id.
254 Friedman v. City of Highland Park, Ill., 784 F.3d 406, 410 (7th Cir. 2015) (quoting District of Columbia v. Heller,
554 U.S. 570, 622-25 (2008) and United States v. Miller, 307 U.S. 174, 178-79 (1939)).
255 Id. at 410.
256 Id.
257 Id. at 411.
258 Id. at 412. In dissent, Judge Manion asserted that “[b]y prohibiting a class of weapons commonly used throughout
the country, Highland Park’s ordinance infringes upon the rights of its citizens to keep weapons in their homes for the
purpose of defending themselves, their families, and their property” and are “directly at odds with the central holdings
of Heller and McDonald.” See id. at 412-13 (Manion, J., dissenting). He also disagreed with the approach taken,
contending that the common two-part test should have been applied. Id. at 414-15.
259 Friedman v. City of Highland Park, Ill., 136 S. Ct. 447 (2015) (denial of cert.) (Thomas, J., dissenting).
260 Id. a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR44618. Public record. Not legal advice.