The Second Amendment and Guns, Part II

© 2020 Dan Cofran | Reading Time:  8 minutes


By joebelanger

The Supreme Court in District of Columbia v. Heller (2008) held that Second Amendment protection includes a law-abiding person’s right to possess a firearm for self-defense in the home, if using a weapon in common use at the time for home self defense, in this case a handgun. 

Looking for Part I? Click Here.

Before this decision, for nearly 200 years, federal courts had limited the Second Amendment to a collective right of states to raise militias, not an individual right to keep and bear arms. 

However, the Court in this decision did not announce rules for how to judge the constitutionality of other gun laws in the future, for example, laws regulating military-style assault rifles, large capacity ammunition magazines, “bump” stocks, silencers and open and conceal carry laws.  The Court left this for federal trial and appeals courts to develop.  So what have they done?

Gun Regulation after District of Columbia v Heller

Most federal trial and appeals courts have agreed on a two-part test for Second Amendment cases.  First, they look at whether a challenged law “burdens” conduct protected by the Second Amendment.  If it does not, that frequently ends the matter and the law passes muster as not even involving the Second Amendment. 

Step One – Burden or Not. In the first step, courts will treat limitations on categories of people, types of weapons and places like those the Supreme Court described as “longstanding” and “presumptively lawful,” as not burdensome.  For example, possession by felons or mentally ill persons, possession in sensitive places like school yards or government buildings, and conditions on sellers of firearms are not protected by the Second Amendment.  These laws sometimes are treated as in a “safe harbor.” 

Step Two – Tiered Scrutiny.  If a court concludes that a law does burden the Second Amendment, it goes to the second step and will balance an individual’s interest in exercising Second Amendment rights of self-defense vs. the government’s interest in protecting the public, for example, public safety, protection of law enforcement personnel, crime prevention, crime investigations, firearm safety, etc. In addition, the court examines how well the law will actually protect the claimed interest.  Basically, Step Two balances the individual’s interest versus the government’s interest.

The balancing process uses three tiers of scrutiny borrowed from First Amendment cases.  The closer the regulated conduct is to the “core” right to self defense in the home, the more scrutiny a court will apply to the law, making the government’s case more difficult.  As the regulated conduct moves away from the “core” right of self-defense in the home, the level of judicial scrutiny relaxes, making the government’s case easier.  Application of the standards is very fact intensive.

Close Scrutiny is the toughest level.  It’s the “closest to home,” so to speak.  It will be used if the individual’s interest is “core” interest of law-abiding citizens’ right to self-defense in the home with firearms in common use at the time for self defense in the home.  In this situation a government must show that its law furthers a “compelling” governmental interest and that the law is “narrowly tailored” to serve that interest. 

Intermediate Scrutiny is a step down in difficulty for the government.  As we move away from self-defense in the home, a government must show that the law furthers a “substantial” or “important” governmental interest, that there is a “substantial or reasonable fit” between the law and the interest, and that the law’s restriction is no greater than necessary to further that interest.  This is the most frequently used standard.  For example, it frequently is used for open or conceal carry cases when an individual is in public and away from home.

Rational Relationship Scrutiny is the mildest level.  Courts simply look to whether there is a “rational relationship” between the regulated conduct and a “legitimate” governmental interest.  Courts give significant deference to legislative bodies under this standard and don’t “second guess” legislatures, city councils, etc.  However, because federal courts are very sensitive to Second Amendment cases, they rarely if ever use this standard, instead opting for intermediate scrutiny.

New York State Rifle and Pistol Association v. City of New York

Caution!  These tiered scrutiny tests may not be long for the world in Second Amendment cases.  Last year, 2019, the Supreme Court decided to review a New York City hand gun ordinance requiring a license to own a handgun and confining possession to a specific address, for example, a residence or place of business.  In addition the ordinance limited transport of a handgun from the designated address to an authorized shooting range or an area outside the city authorized for hunting under state law.  In both instances, the gun must remain unloaded, in a locked container and separated from ammunition. 

The federal trial court and appeals court upheld the law, applying intermediate scrutiny – a “substantial” or “important” governmental interest, a “substantial or reasonable fit” between the law and the interest, and restrictions “no greater” than necessary .  The Supreme Court agreed to review the case and will announce its ruling this year, 2020.

Standards for Second Amendment cases may change with this new case.  Since Heller was decided, Justices Scalia and Kennedy have gone off the Supreme Court due to death and retirement.  They have been replaced with Justices Neil Gorsuch and Brett Kavanaugh, both of whom have taken positions not supporting the tiered scrutiny tests in Second Amendment cases. 

Justice Kavanaugh believes there is no place for differing levels of scrutiny.  He has stated, before being named to the Court, that Second Amendment protection should be determined only by its text, history and tradition, commonly known an “originalist” view for interpreting the Constitution.  Justice Gorsuch, as a member of the Supreme Court, joined a dissenting opinion in 2017 similarly relying on originalist principles of “text, history and jurisprudence,” not tiered scrutiny levels.

Caution Again!  The Supreme Court may pass on the case as moot. After the Court decided to hear the case, New York City amended the ordinance to make it less restrictive.  State statute amendments may also have made the ordinances less restrictive. This may have mooted the case, meaning no change in the law. The Supreme Court will not decide the merits of a case if there no longer is “a case or controversy.”

What Have the Courts Been Doing

Since Heller, most federal courts have used the two-part test, including tiered scrutiny, with the following results.

Restrictions on Persons.  Laws banning possession by felons, unlawful drug users and addicts, mentally ill persons, domestic abusers, persons subject to domestic violence protection orders, unlawfully present aliens (depending on how long a resident), non-immigrant visa holders, persons under 18 and sale to persons under 21 have been upheld as not violating the Second Amendment.  Courts generally apply intermediate scrutiny in these cases

Assault Rifles and High-Capacity Magazines.  Bans on semi-automatic assault rifles; high-capacity magazines, for example, more than ten rounds and bullets designed to fragment on impact like hollow-points have been upheld as not protected by the Second Amendment.  Courts generally apply the intermediate scrutiny in these cases

Firearms Outside the Home.  Courts appear to agree that Second Amendment protection for self-defense extends beyond the home.  Open carry laws generally have passed constitutional muster, but courts are split on whether open carry is a “core” right.  Courts disagree on the constitutionality of conceal carry laws including whether conceal carry is a “core” Second Amendment right.  In one case a licensing requirement for conceal carry was found not to violate the Second Amendment. Other courts have split on the constitutionality of requiring “good cause” or similar conditions to get a conceal carry permit.  Courts generally apply the intermediate scrutiny in these cases

Storage Requirements.  Courts appear comfortable with locked storage or trigger locks for handguns in the home as not violating the Second Amendment.  Intermediate scrutiny is applied.

Government Property.  The Supreme Court in Heller saw prohibitions for “sensitive places” as “presumptively lawful” and federal courts have followed suit.  The further away from home, the less strength the Second Amendment will have. Courts have applied intermediate scrutiny.

Waiting Periods.  A California law imposing a ten-day waiting period for purchases was upheld as not violating Second Amendment purchase and possession rights.  The court applied intermediate scrutiny and found the statute did not substantially interfere with individual rights and reasonably fit a legitimate governmental objective for promoting safety and reducing gun violence.

Firearm Registration.  The District of Columbia’s registration for both handguns and long guns (rifles and shotguns) was upheld in a later stage of the Heller case after provisions violating the Second Amendment were repealed.  The court held that any burden imposed by basic handgun and long gun registration was de minimus.  The court applied the intermediate scrutiny test to some additional registration requirements and allowed requirements for applying in person in order to be photographed and fingerprinted, paying registration and fingerprinting fees and taking a gun safety and training course, all based on the government’s interest in public safety.  However, requirements that the firearm be brought in, three-year renewals and limitations to only one handgun registration every thirty days fell short as not written to fit the public safety interest.

A New York City three-year licensing fee of $340 for possession of a handgun was upheld, applying intermediate scrutiny, as reasonable to cover the costs of a licensing program for public safety and gun violence reduction.

# # #

Good luck and stay tuned for the Supreme Court’s ruling this year in the New York State Rifle and Pistol Association case.

For more plain English articles about the Constitution, visit my website at and click the “Constitutional Law Articles” tab on the home page.