In June of 2008, the Supreme Court handed down a landmark decision in District of Columbia v. Heller, declaring that a District of Columbia law prohibiting the possession of handguns in a private home for personal protection violated the Second Amendment of the Constitution. Justice Scalia, writing for a 5-4 majority, recognized that the protections provided by the Second Amendment apply to individuals—not just “militias”—and emphatically declared that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” After four years of litigation, the highest court in the nation provided Dick Heller, the named respondent in the case, and the rest of the District of Columbia with a decision that recognized an individual right to bear arms. What the Court failed to provide, however, was a standard of review for lower courts to use in the adjudication of future Second Amendment challenges.
Just two years and two days after the publication of the Heller decision, the Court was given another shot at articulating a standard of review for Second Amendment challenges through its decision in McDonald v. City of Chicago. Justice Alito, writing for a plurality of the Court, found the Second Amendment to be incorporated against the states through the Due Process Clause of the Fourteenth Amendment. McDonald’s holding that the Second Amendment is a fundamental right and applicable to the states led the Court to find a Chicago ordinance essentially prohibiting the ownership of handguns within city limits to be unconstitutional. With a similar result as to that of Heller, the Court’s decision provided Otis McDonald and several other petitioners with authorization to possess a handgun within the home. The Court declined for a second time, however, to provide a standard of review for lower courts to apply to future Second Amendment cases. Also remarkably similar to the Heller decision, the dissenting justices seized the opportunity to voice their desire for a more malleable level of scrutiny.
This Note argues that in the wake of Heller and McDonald—which recognized the Second Amendment as an enumerated fundamental right—lower courts should apply strict scrutiny as the standard of review when adjudicating future Second Amendment challenges. The use of strict scrutiny, however, does not come without some well-defined, but limited, exceptions that are “deeply rooted in this Nation’s history and traditions”— essentially, fundamental exceptions to the Second Amendment. Part II of this Note will address the background cases leading to the acknowledgement by the Court of this fundamental right, namely United States v. Miller and District of Columbia v. Heller, along with McDonald v. City of Chicago. In Part III, this Note will explain the three-tiered standard of review model for challenging the constitutionality of laws, along with some of the variations that the Court has crafted through precedent. Part IV argues that the plurality’s opinion in McDonald is a clear step towards a stricter standard of review. Furthermore, Part IV argues that strict scrutiny is the appropriate standard of review for Second Amendment challenges and addresses the limitations that can be expected to accompany that standard. Finally, Part V discusses the obvious forewarning by Justice Stevens found at the beginning of this Note, namely that lower courts will undoubtedly be bombarded with Second Amendment challenges until the Supreme Court clarifies this point of contention.