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Abstract
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The Second Amendment provides: "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." For more than 200 years following the adoption of the Second Amendment, the U.S. Supreme Court did not address any questions regarding the constitutionality of firearms regulations. Then, in the 2008 case of District of Columbia v. Heller, the U.S. Supreme Court declared the Second Amendment guarantees an individual right to bear arms. Today, any discussion of the Second Amendment must begin with Heller.
In Heller, the Supreme Court decided that the Second Amendment guarantees an individual right to possess firearms for self-defense inside the home. The Heller Court did not establish a clear test for lower courts o follow when considering firearm restrictions, stating the restriction at issue in Heller would be unconstitutional under "any of the standards of scrutiny that we have applied to enumerated constitutional rights." However, the Court also said the right to bear arms protected by the Second Amendment "is not unlimited." Two years after Heller, the Supreme Court decided the Second Amendment is applicable to the states through the Fourteenth Amendment's Due Process Clause. In response to gun violence, many states have implemented regula- tory schemes that require individuals to show "proper cause" to carry firearms in public. Under these schemes, individuals must demonstrate a "special need" to protect themselves to obtain a license to carry firearms in public. Some judges and commentators believe proper cause laws restrict the Second Amendment rights of individuals unable to demonstrate a special need to protect themselves. "[W]hether the Second Amend- ment guarantees individuals the right to carry arms openly in public" is, not surprisingly, "a question that has divided the circuits." The Ninth Circuit correctly concluded that proper cause laws do not violate the Second Amendment in Young v. Hawaii; however, the Young court's decision that these restrictions regulate conduct outside of the scope of the Second Amendment is inconsistent with all other circuits that have addressed the issue and with the Supreme Court's decision in Heller.
The Ninth Circuit, like most circuits, follows a two-step framework for reviewing Second Amendment challenges. The court first asks whether a challenged law burdens a right protected by the Second Amendment. If it does, the court then applies an appropriate level of means-end scrutiny (i.e., rational basis, intermediate scrutiny, or strict scrutiny) to the challenged law. In Young, the Ninth Circuit became the first circuit to decide that proper cause laws do not burden a right protected by the Second Amendment, upholding the law in step one and thus never reaching the means-end analysis of step two.
This Note analyzes the Ninth Circuit's decision that proper cause laws do not burden a right protected by the Second Amendment based on the Anglo-American history of public carry laws. Ultimately, this Note argues that, although the Ninth Circuit correctly concluded that proper cause laws do not violate the Second Amendment, it should have decided the issue based on means-end analysis--consistent with all other circuits that have addressed the issue--rather than deciding the case based on history and tradition. Part II summarizes the circuit split that developed over the constitutionality of proper cause laws following the Supreme Court's decision in Heller. Part III provides the facts and procedural history of Young. Part IV summarizes the Ninth Circuit's canvas of more than 700 years of legal history and discusses the en banc court's decision that this history disproves any individual Second Amendment right to bear arms in public for self-defense. Part V critiques the Ninth Circuit's departure from all other circuit courts in its use of history instead of means-end analysis to decide the constitutionality of proper cause laws. Part VI discusses the impact of Young and the Supreme Court's similarly history-based decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen.
Available at: https://digitalcommons.law.villanova.edu/vlr/vol67/iss4/3
Language: en |