Allen Rostron has a new piece in the GW Law Review titled Justice Breyer’s Triumph in the Third Battle over the Second Amendment.
In recent years, the Supreme Court has issued two landmark decisions about the constitutional right to keep and bear arms. District of Columbia v. Heller rejected the notion that the Second Amendment protects only organized militia activities, and McDonald v. City of Chicago found that the right to keep and bear arms applies to state and local governments via incorporation into the Fourteenth Amendment. Those decisions left important questions unanswered. In particular, the Supreme Court declined to specify what level of scrutiny or test should be used to assess the validity of gun laws. Lower courts are now wrestling with that crucial issue. Examining the decisions made so far, this Article argues that the third phase of the fight over the right to keep and bear arms is moving toward an unusual result. The lower court decisions reflect the pragmatic sentiments of Justice Breyer’s dissenting opinions in Heller and McDonald. Frustrated by the predominantly historical approach and the puzzling categorizations suggested by Justice Scalia and the other members of the Heller and McDonald majorities, the lower courts have focused on contemporary public policy interests and applied a form of intermediate scrutiny that is highly deferential to legislative determinations and leads to all but the most drastic restrictions on guns being upheld. Justice Breyer thus stands poised to achieve an unexpected triumph despite having come out on the losing side of both of the Supreme Court’s recent clashes over the right to keep and bear arms.
I made a similar point in The Constitutionality of Social Cost that Breyer’s pragmatism trumped Scalia’s originalism that I made in the Constitutionality of Social Cost.
The crux of the outcome in Heller and McDonald, and in future lower court opinions, is based not on history, but on balancing the externalities and lib‐ erty interests of the Second Amendment.
Update: Rostron writes further on originalism and jot-for-jot incorporation.