Replacing the Second Amendment is the Only Way to Preserve the Individual Right to Self-Defense While Reducing Gun Violence

Transcription

1 Replacing the Second Amendment is the Only Way to Preserve the Individual Right to Self-Defense While Reducing Gun Violence Kevin T. Crane, Jr.* ABSTRACT If you want something done right you have to do it yourself We, the American people, cannot rely on our legislators or our courts to fix our broken gun policy. For one thing, tasking our elected officials and jurists with this is as ill-advised as hiring a group of teenagers to remodel your house while you are away for the summer. You can bet your last dollar that when you return you're going to be in a worse spot than when you left. Maybe the legislatures and the courts could be effective if we were talking about a quick fix or small adjustment to solve this problem. However, American gun policy doesn't need a quick fix or a small adjustment; it needs a total reconstruction. We no longer have the luxury of sitting idly while one group debates the other over how exactly an eighteenth century text governs our twenty-first century problems. If the Second Amendment is getting in the way of securing our free state, then it's time for a "new Second Amendment." I. INTRODUCTION In the right hands, the use of guns can prevent tragedy, and it is natural for law-abiding individuals to want access to tools of self-defense that efficiently protect against the harm threatened.' A lethal threat justifies a lethal * Member of the Bar of the Commonwealth of Massachusetts; B.A., 2008, University of Massachusetts, Amherst; J.D. 2013, New England Law I Boston. The author thanks the editors of the New England Journal on Criminal and Civil Confinement for their assistance with this article. For B. 1. See Texas Deputy Stops Theater Shooter, POLICE MAG. (Dec. 16, 2012), 427

2 428 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 response. 2 In the wrong hands, the use of guns can cause tragic results. 3 Whether gun regulation is an effective means of diminishing gun-related tragedy is a recurrent debate in America. 4 To this end, laws criminalize some activity related to guns that society deems undesirable, including possession of guns by certain people, 5 possession of certain types of guns, 6 possession of guns in certain places, and how guns come to be in the possession of individuals. 8 In other words, typical gun laws can be categorized as who, what, where, and how-type regulations. 9 The penalties for persons convicted of violating these gun laws are harsh.' 0 Unfortunately, the empirical evidence of the positive and negative effects of gun regulation is inconclusive, giving neither side of the debate a clear advantage." Where the evidence in favor of more gun regulation roughly equates the evidence in favor of less gun regulation, policy makers face tough decisions that are heavily influenced by ideology, life history, and culture mores. 12 Most importantly, any discussion for or against laws regulating the sale, ownership, or possession of guns must begin with the relationship between the proposed law and the Second Amendment,1 3 as defined by the United States Supreme Court in District of Columbia v. Hel- 2. See WHITLEY R. P. KAUFMAN, JUSTIFIED KILLING: THE PARADOX OF SELF-DEFENSE 150 (2009). 3. See Matt Gutman, Trayvon Martin Neighborhood Watch Shooting: 911 Tapes Send Mom Crying From Room, ABC NEWS (Mar. 16, 2012), 1-tapessend/story?id= #.UWTCD5NJOAg. 4. See, e.g., MARK TUSHNET, OUT OF RANGE 76 (2007) (critiquing conclusions drawn by parties from either side of the debate on analysis that assumes too much or fails to account for result-changing variables). 5. E.g., 18 U.S.C. 922(g) (2013) (prohibiting convicted felons, among others, from possessing firearms). 6. E.g., id. 922(o) (prohibiting possession of a machine gun). 7. E.g., id. 922(q)(2)(A) (prohibiting possession of a firearm in a school zone). 8. E.g., id. 922(a)(1)-(2) (prohibiting anyone but a licensed manufacturer, licensed importer, or licensed dealer, among others, from engaging in the business of manufacturing, dealing, or importing firearms). 9. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self- Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, (2009). 10. E.g., 18 U.S.C. 924(a) (proscribing prison terms, including five and ten year sentences, for violations of different provisions under said chapter). 11. BRIAN DOHERTY, GUN CONTROL ON TRIAL: INSIDE THE SUPREME COURT BATTLE OVER THE SECOND AMENDMENT 93 (2008); TUSHNET, supra note 4, at TUSHNET, supra note 4, at U.S. CONST. amend. I ("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.").

3 2014] REPLACING THE SECOND AMENDMENT 429 ler.14 The recurring American gun debate comes and goes with the ebb and flow of violent time periods. 15 Over the past several years, there have been a number of mass shootings, 16 culminating in the massacre at Sandy Hook Elementary School on December 14, 2012, that have caused Americans to reexamine their gun policy. 17 President Barack Obama has committed to a change in American gun policy, 18 and Senator Dianne Feinstein has submitted the Assault Weapons Ban of 2013 for consideration." This Note proceeds under the presumption that Americans want American gun policy to be more efficient at reducing the occurrence of gun tragedies while protecting their right to defend themselves with arms under the Second Amendment. In order to succeed, the possibility of creating a new gun policy through innovative approaches to gun legislation under the Heller test must be assessed. Through an analysis of the Federal Circuit Courts of Appeals' application of the Heller test, this Note will argue that the current constitutional framework will obstruct potentially effective gun policy reform, and to reach a breakthrough the American people should repeal and replace the Second Amendment. 14. Dist. of Columbia v. Heller, 554 U.S. 570, 592 (2008) ("Putting all these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation."). 15. See DOHERTY, supra note 11, at (describing major gun reforms, including the National Firearms Act of 1934, which coincided with the rise of organized crime violence, and the Assault Weapons Ban of 1994, which coincided with the crack-cocaine epidemic); see also ANDREW CARLSON, THE ANTIQUATED RIGHT: AN ARGUMENT FOR THE REPEAL OF THE SECOND AMENDMENT (2002). 16. Mark Follman et al., US Mass Shootings, : Data From Mother Jones' Investigation, MOTHER JONES (Dec. 28, 2012), Since 1982, sixty-two shootings of five victims or more have occurred in the United States. Id. Seven shootings occurred in Id. Thirty mass shootings have occurred within the last ten years, including Sandy Hook (28 fatalities, 2 injured); Aurora, Colorado (12, 58); Virginia Tech (33, 23); Fort Hood (13, 30); Tucson, Arizona (6, 13); Northern Illinois University (6, 21); and Binghamton (14, 4). Id. Columbine High School (15, 24) occurred in Id. "Mass shooting" is not defined on the website but all the shootings for which data is provided resulted in five or more victims. Id. 17. Id. 18. Reid J. Epstein & Jennifer Epstein, Obama Guns Plan Meets Fast Resistance, PoLiTico (Jan. 16, 2013), Stopping the Spread of Deadly Assault Weapons, DIANNE FEINSTEIN, (last visited Mar. 27, 2013).

4 430 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 The next two parts of this Note should interest both gun rights proponents and gun control proponents who wish to learn about the recent developments in Second Amendment jurisprudence. In Part II, this Note will provide the meaning of the Second Amendment as interpreted by Heller. Part 111 will describe the test applied by the Courts of Appeals and analyze its critical flaws. This Part will conclude that the current legal framework must change for gun control proponents and gun rights proponents to realize a better national gun policy. Part IV will offer a framework for a "new Second Amendment" that will preserve the values codified in the individual right to use firearms for self-defense, including the choice to own weapons such as handguns, long guns, and semi-automatics toward that purpose. However, in order to allow for the states to effectively diminish the occurrence of individuals inflicting harm on themselves and others, this framework will propose a ban on the commercial sale of ammunition while preserving the right to sell ammunition exclusively for the states. Part V will conclude by summarizing the arguments presented. II. THE MEANING OF THE SECOND AMENDMENT On June 26, 2008, the Supreme Court issued an opinion, which, for the first time in the history of the Court, undertook a comprehensive analysis of the Second Amendment's meaning. 20 Prior to the Supreme Court's decision in Heller, the District of Columbia banned the registration of handguns-effectively makinp it impossible to keep a handgun in one's home for any lawful purpose. 2 Dick Heller, a special police officer, applied for and was denied a registration certificate for a handgun he wanted to keep at home. 22 Thereafter, Heller filed suit asking for the District to be enjoined from enforcing its handgun ban. 23 After dismissal from Federal District Court, the Court of Appeals reversed, holding that "the Second Amendment protects an individual right to possess firearms, and that the city's total ban on handguns... violated that right." 24 The District of Columbia argued that the Second Amendment "protects only the right to possess and carry a firearm in connection with militia ser- 20. Andrew Gould, The Hidden Second Amendment Framework Within District of Columbia v. Heller, 62 VAND. L. REv. 1535, 1536, (2009) (referring to Heller: "[t]he Supreme Court had not addressed the issue in any meaningful fashion..."); see Dist. of Columbia v. Heller, 554 U.S. 570, (2008) (analyzing Court precedent on the Second Amendment-all of which were cursory examinations of the Amendment's meaning). 21. Heller, 554 U.S. at Id. at Id. 24. Id.

5 2014]1 REPLACING THE SECOND AMENDMENT 431 vice." 25 The respondents argued instead that the Second Amendment "protects an individual right to possess a firearm unconnected with service in militias, and to use that firearm for traditionally lawful purposes, such as self-defense within the home." 26 By a majority of five to four, the Court held-after analyzing the text of the amendment, 27 the historical evidence, 2 8 and Court precedent 29 -"that the District's ban on handgun possession in the home violate[d] the Second Amendment, as [did] its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." 30 In so doing, the Court rejected the theory that the Second Amendment only protected the right to keep and bear arms in connection with service in a state militia. 31 Rather, the Court found that the right to keep and bear arms guaranteed a broader protection for individuals to own and carry firearms for self-defense. 32 To support the individual right theory, the Court relied on textual analysis and historical evidence. 33 Then, having found the pu oses of the right, the Court proceeded to explain that the right is limited. From these parts of the Court's opinion emerges the meaning of the Second Amendment. A. Interpreting the Text: What Purposes Does the Right Serve? A key component of the Court's textual analysis was its conclusion that the prefatory clause-"a well regulated Militia, being necessary to the security of a free state"- does not limit the scope of the operative clause- "the right of the people to keep and bear arms shall not be infringed." 3 s Rather the prefatory clause was but one reason that the Founders enshrined the pre-existing right to have arms for self-defense. 36 Accordingly, the Court did not accept the District's argument that it was free to reasonably regulate gun activity not related to militia activity. 37 To the contrary, the Founders adopted the Second Amendment for civic purposes, to have a 25. Id. at Id. 27. Id. at Id. at Id. at Id. at Id. at (discrediting arguments supported by Justice Stevens in his dissent). 32. Id. at Id. 34. Id. at Id. at 577; see STEPHEN P. HALBROOK, THE FOUNDERS' SECOND AMENDMENT: ORIGINS OF THE RIGHT TO BEAR ARMs 332 (2008). But see Heller, 554 U.S. at 651 (Stevens, J. dissenting); CARLSON, supra note 15, at Heller, 554 U.S. at Id. at

6 432 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 trained citizenry capable of forcefully opposing tyranny or foreign invasion, and personal purposes, so the citizens may defend themselves in case of confrontation. 3 8 Having concluded that the Second Amendment protected the ownership and possession of arms for civic and personal purposes, and that the District of Columbia's handgun ban conflicted with the latter, the Court proceeded to analyze whether the law unconstitutionally infringed on the petitioners' Second Amendment Rights. 39 Before doing so, the Court explained some limits to the Second Amendment. 40 B. The Public Understood the Pre-Existing Right to be Limited in Scope "Like most other rights, the right secured by the Second Amendment is not unlimited." 41 The Heller opinion described some guideposts for what the future review of laws limiting Second Amendment rights should consist of based on how the American people understood the pre-existing right. 42 The Court stated: Although we do not undertake an exhaustive historical analysis of the full scope of the Second Amendment, 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 arms. We also recognize another important limitation... as we have explained,... the sort of weapons protected were those in "common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." 43 Unlike the laws mentioned in the passage above, the District of Columbia's handgun ban prohibited "an entire class of 'arms"' in common use for self-defense.4 The Court emphasized: The prohibition extends, moreover, to the home, where the need for defense is most acute. Under any of the standards of scrutiny that we have 38. Id.; see Michael P. O'Shea, The Right to Defensive Arms After District of Columbia v. Heller, 111 W. VA. L. REV. 349, (2009). 39. Heller, 554 U.S. at Id. at Id. 42. Id. at Id. at (citations omitted). 44. Id. at 628.

7 2014] REPLACING THE SECOND AMENDMENT 433 applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family" would fail constitutional muster. 45 Beyond federal or state laws 46 that completely prohibit handguns kept in the home for self-defense, the Supreme Court has left the constitutionality of other gun laws open. 47 Gun control proponents, gun rights proponents, and the lower courts hearing these claims have only the Court's brief mention of limits to the scope of the right to guide their analysis. In his dissent, Justice Breyer admonished the majority for not establishing which of the familiar degrees of constitutional scrutiny should apply to the Second Amendment, leaving the nation without clear guidance on an important subject. 48 Justice Breyer would have held that Second Amendment review requires an "interest balancing approach" that decides whether the burden imposed on the individual's interest in self-defense was proportional to the government's interest in public safety. 49 The majority rejected the "interest balancing approach," fearing it would empower the judiciary to contravene the constitutional rights of the people. 50 Regardless, the majority stated, such an analysis was unnecessary to resolve the controversy before it, for "whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 5 1 With that, the Supreme Court held "that the District's ban on handgun possession in the home violate[d] the Second Amendment." 52 Since Heller, a wave of Second Amendment claims has crashed down upon the high courts of many states as well as nearly every Federal Circuit Court of Appeals. From Heller, the lower courts have had to construct some test for dealing with this "tsunami of uncertainty." 53 The above quot- 45. Id. 46. McDonald v. City of Chicago, 130 S. Ct. 3020, 3021 (2010) (holding a City of Chicago ordinance-similar to the D.C. ban on handguns-was unconstitutional under Heller because the Second Amendment applies to the States). 47. Heller, 554 U.S. at 635 ("Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt... [T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us."). 48. Id. at 655 (Breyer, J., dissenting). 49. Id. 50. See id. at 635 (majority opinion). 51. Id. 52. Id. 53. Stacey L. Sobel, The Tsunami of Legal Uncertainty: What's a Court to Do Post- McDonald?, 21 CORNELL J.L. & PUB. POL'Y 489, 490 (2012) (quoting McDonald v. City of Chicago, 130 S. Ct. 3020, 3105 (2010) (Stevens, J., dissenting)).

8 434 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 ed passages from the opinion have provided the most common source of guidance. 54 III. THE JUDICIAL AND ACADEMIC RESPONSES TO HELLER DEMONSTRATE THAT THE SECOND AMENDMENT WILL PREVENT INNOVATIVE LEGISLATION The application of the Heller opinion to laws limiting conduct protected by the Second Amendment will prevent the state and federal governments from enacting innovative legislation aimed at reducing the tragedy experienced by victims of gun violence. This conclusion is evidenced by two primary sources. To start, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Tenth, and D.C. Circuits 55 have all applied Heller, and their interpretations of Heller provide clear patterns on which to make predictions. 56 Secondly, numerous academic commentaries have expounded on the implications of Heller, and their insights support the argument that innovative gun legislation will face significant (even prohibitive) constitutional hurdles in the future. 57 In light of this analysis, this Part will conclude that the Heller decision imposes irreconcilable demands upon innovative approaches to gun legislation See infra Part III. 55. Hightower v. City of Bos., 693 F.3d 61, 73 (1st Cir. 2012); United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, (2d Cir. 2012); United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010); United States v. Barton, 633 F.3d 168, 170 (3d Cir. 2011); United States v. Masciandaro, 638 F.3d 458, (4th Cir. 2010); NRA v. ATF, 700 F.3d 185, 188 (5th Cir. 2012); United States v. Greeno, 679 F.2d 510, 517 (6th Cir. 2012); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc); Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012); United States v. Reese, 627 F.3d 792, 799 (10th Cir. 2010); Heller v. Dist. of Columbia (Heller II), 670 F.3d 1244, 1249 (D.C. Cir. 2011). 56. See infra Part III.B. 57. See, e.g., Volokh, supra note 9, at ; Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 CLEV. ST. L. REv. 1, 55 (2012); Gould, supra note 20, at 1536, ; O'Shea, supra note 38, ; Darrell A. H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 YALE. L.J. 852, 855 (2013). 58. Miller, supra note 57, at 852. Professor Miller provides a persuasive argument for applying Seventh Amendment jurisprudence's "history test" to Second Amendment jurisprudence, given Heller's call for historical analysis. See generally id. Although his argument is highly persuasive, and could very well be the solution to bringing consistency to Second Amendment jurisprudence if implemented, this Note argues that continuing to limit gun regulation to historical analogues limits the people from dealing with its contemporary problems.

9 2014] REPLACING THE SECOND AMENDMENT 435 A. The Heller Test Created by the Courts of Appeals Heller's holding provides that the government cannot completely ban classes of arms commonly kept by the people in their homes for the purpose of self-defense. 59 Further, while declining to provide which level of heightened scrutiny should apply to gun laws, Heller expressly ruled out rational basis scrutiny. 60 Between these book ends, the Court provided little guidance for the lower courts to rule on the constitutionality of gun laws. With these considerations in mind, how have the circuit courts decided the Second Amendment claims that have arisen since Heller? Eight of the federal circuit courts have applied Heller and agreed that two issues must be addressed to resolve Second Amendment claims. 6 1 Though Heller abstained from establishing the full scope of the Second Amendment, and did not say what degree of scrutiny should be applied in future cases, Heller proceeded immediately after mentioning "scope" in its opinion to list presumptively lawful "who, what, where, and how-type" regulations. 62 The lower courts have implied that Heller described those regulations as presumptively lawful because they either: (1) fell outside the scope of the Second Amendment and were not subject to heightened scrutiny; or, (2) they were within the Amendment's scope but passed a heightened form of scrutiny.63 The Fifth Circuit described the inquiry this way: [T]he first step is to determine whether the challenged law impinges upon a right protected by the Second Amendment-that is, whether the law regulates conduct that falls within the scope of the Second Amendment's guarantee; the second step is to determine whether to apply intermediate or strict scrutiny to the law, and then to determine whether the law survives the proper level of scrutiny.6 Though the test can be easily stated, the case law has shown that it is not easily applied. 65 Four benchmarks can be implied from Heller's list of 59. Dist. of Columbia v. Heller, 554 U.S. 570, 635 (2008). 60. Id. at 628 n NRA v. ATF, 700 F.3d 185, 194 (5th Cir. 2012) ("[O]ur fellow courts of appeals have filled the analytical vacuum. A two-step inquiry has emerged...."); see, e.g., United States v. Marzzarella, 614 F.3d 85, (3d Cir. 2010); United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2010); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89, 93 (2d Cir. 2012); Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012); United States v. Reese, 627 F.3d 792, 799 (10th Cir. 2010); Heller v. Dist. of Columbia (Heller 11), 670 F.3d 1244, 1249 (D.C. Cir. 2011). 62. Heller, 554 U.S. at See cases cited supra note NRA, 700 F.3d at 194 (citations omitted). 65. See infra Part IH.B.

10 436 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 "presumptively lawful regulations," 66 but many questions follow. First, the "people" who may possess arms for lawful purposes does not include even individual living in this country, ruling out felons and the mentally ill. What about misdemeanants, minors, or adults ages eighteen to twenty? Does the presumption apply to all mental illnesses, including anxiety disorders, depression, psychotic disorders, drug addiction, alcoholism, and personality disorders? Will the restrictions based on these conditions all be subject to the same level of scrutiny, or will the level of scrutiny change depending on how threatening a person with a particular condition is likely to be to the public? What about the relatives, cohabitants, or neighbors of these individuals? Could the probability that persons related to dangerous individuals will be exploited for access to firearms affect their Second Amendment rights? Second, it is implied that arms may not be carried in any place an individual wishes to have them, since the Heller court provided that regulation of "sensitive places" is presumptively lawful. 68 However, the term "sensitive places" was not defined in the opinion. 69 Could they include schools, hospitals, government buildings, stadiums, theaters, restaurants, malls, gardens, or parks? Is the government restricted in regulating a sensitive place itself, or may it prohibit weapons from a statutory area surrounding them? Can the government prohibit the possession of firearms outside the home completely? If not, are states required to objectively issue open or concealed carry licenses, or may they do so at their discretion? Third, the Constitution does not protect the right to own or carry all arms, as Heller presumed that uncommon or "dangerous and unusual" weapons are fairly subject to regulation. 70 What guns are common? What guns are "dangerous and unusual?" Can the government prohibit rocket launchers, grenades, flame throwers, fully automatic weapons, semiautomatic weapons, large caliber rifles, hollow point bullets, or large capacity magazines? Fourth, the Second Amendment does not prohibit all "conditions and qualifications on the commercial sale of arms." 71 Does that imply that national registration systems, universal background checks for all transactions, or mandatory safety training are presumptively lawful? Could universal background checks require the applicant to complete an evaluation for mental illness? What about the disclosure of all family members, co- 66. Heller, 554 U.S. at 627 n Id. at Id. 69. Id. 70. Id. 71. Id.

11 2014] REPLACING THE SECOND AMENDMENT 437 habitants, and neighbors with known mental illnesses? Until the Supreme Court says otherwise, the answers to these questions will come from an analysis under the two-step Heller test, which has been applied by a majority of the Circuit Courts of Appeals. 72 Precisely how our historical understanding of the Second Amendment right, the burdens laws place on individuals, or the government's interest in gun regulation are relevant to the analysis is still being determined on a case by case basis. Though the application of Heller is still in its infancy, the cases that have been decided raise the concern that following Heller to the letter is impracticable and obstructs meaningful gun policy reform. 1. Step One: Historical Analysis In some cases, the historical evidence of a particular gun law supports the inference that the regulated activity was not understood to be within the scope of the pre-existing right protected by the Constitution. 73 In Hightower v. City of Boston, a former police officer's Class A license to carry a concealed wea on (CCL) was revoked for omitting pending charges on her renewal form.' 4 Historical evidence supported the conclusion that the right to carry a concealed weapon in public is not within the scope of the Second Amendment. 7 5 The Heller opinion itself stated "the majority of 19thcentury courts" upheld prohibitions on concealed carry. 76 Thus, the licensing at issue in this case was presumptively lawful based on its longstanding place in the historical record. 77 The court concluded that the revocation was constitutional under any scrutiny because requiring truthful information is a necessary component for a lawful licensing scheme to function. 78 The court abstained from deciding what level of scrutiny applies to laws falling outside of the scope of the Second Amendment because it was not necessary to resolve the case. 79 Similarly, in United States v. Rene E.,80 the First Circuit upheld a gun law based on evidence of historical analogues to the present day regulation -the federal prohibition on possessing a handgun as a juvenile. 81 Like the law in Hightower, the regulation prohibiting juveniles from possessing 72. See cases cited supra note Hightower v. City of Bos., 693 F.3d 61, 73 (1st Cir. 2012). 74. Id. at Id. at Id. at (quoting Heller, 554 U.S. at 626). 77. Id. at Id. at Id. 80. United States v. Rene E., 583 F.3d 8, 9 (1st Cir. 2012). 81. Id. at 12.

12 438 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 handguns has historically been a part of lawful gun regulation. 82 Though the statute was new, rather than longstanding, having been enacted in 1994,83 the First Circuit rested its conclusion on traditional analogues. 84 For example, a number of states enacted laws during the late nineteenth century prohibiting the possession and transfer of arms to minors because of public safety concerns. 8 5 Also, many states prohibited juveniles from participating in the militia during the founding era. 86 Based on the historical evidence, the First Circuit upheld the statute without resorting to a means-end analysis. 8 7 Unlike the previous two cases, in which analytical comparison to traditional regulation supported upholding the law in question, the following two cases demonstrate how the courts can find the same historical record to support different conclusions. In Moore v. Madigan, the issue before the Seventh Circuit was whether the "Second Amendment creates a right of self-defense outside the home." 88 The appellees argued that there was no individual right to carry arms in public-an issue left open because Heller limited its holding to the home-and provided the Seventh Circuit with historical evidence to support their argument. 89 For example, the appellees relied on the Statute of Northampton (1328), Sir John Knight's Case (1686), and Blackstone's commentaries (1769) to demonstrate "that there was no generally recognized private right to carry arms in public" when the Second Amendment was ratified. 90 Perhaps disingenuously, the Seventh Circuit found that Heller's historical analysis supporting the existence of an individual right foreclosed the constitutionality of flat bans on keeping firearms in the home and in public. 9 1 The court reasoned that if the purpose of the individual right was selfdefense, and the need for self-defense is greater outside the home than inside it, then the purpose of the individual right must encompass the right to keep and bear arms in public. 92 According to this reasoning, it would be ir- 82. Id. 83. Id. 84. Id. at Id. at Id. 87. Id. 88. Moore v. Madigan, 702 F.3d 933, (7th Cir. 2012). 89. Id. 90. Id. at 936. These sources were cited with approval in Heller. Dist. of Columbia v. Heller, 554 U.S. 570, (2008). 91. Moore, 702 F.3d at 937, Id. at ("Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one's home, as when it says that the amendment 'guarantee[s] the individual right to possess and carry weapons in case of confrontation.' Confrontations are

13 2014] REPLACING THE SECOND AMENDMENT 439 rational to read the historical evidence to imply that the exercise of the individual right to self-defense is subject to strict regulation outside the home, but regulations are subject to much greater scrutiny under the Second Amendment within the home. In contrast to Moore, the Second Circuit had a distinctly different impression of what the historical analysis conducted in Heller said about carrying firearms in public. 93 In Kachalsky v. County of Westchester, the New York law challenged was similar to the Illinois law challenged in Moore with one important distinction. 94 Unlike the Illinois statute, the New York ban on carrying arms in public included a catch-all exception to its general prohibition. 9 5 The police commissioner may issue a license to carry in public if the applicant shows proper cause exists for the license. 96 Proper cause exists for a license to carry without restriction if the applicant demonstrates "a special need for self-protection distinguishable from that of the general community or of persons in the same profession." 97 Accordingly, the New York statute prohibits the vast majority of New York residents from carrying a firearm in public for the purpose of self-defense. 98 Because of the difference in the laws, the question before the court in Kachalsky, whether New York can "limit handgun licenses to those demonstrating a special need for self-protection," was distinguishable from the question asked in Moore. 99 On that basis, the cases are distinguishable, not inconsistent. However, the point is to illustrate different interpretations of the same historical evidence. The Second Circuit was much more candid about the strength of the historical record before it: "[h]istory and tradition do not speak with one voice here." 100 In the opinion, the court weighed the historical evidence to conclude that "state regulation of the use of firearms in public was 'enshrined within the scope' of the Second Amendment when it was adopted." 10 ' Such evidence included the fact that the New York law restricting gun possession in public predated the Constitution, most states banned concealed carry in the nineteenth century, and others banned the not limited to the home."). 93. Id. at 943 (Williams, J., dissenting). 94. See Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 86 (2d Cir. 2012) (listing the requirements for a firearms license under N.Y. law); see also Moore, 702 F.3d at 941 (majority opinion). 95. Moore, 702 F.3d at Kachalsky, 701 F.3d at Id. 98. Id. 99. Id Id. at Id. at 96.

14 440 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 sale of concealable weapons.1 02 Further, the court was persuaded to apply a different standard in the home because applying higher scrutiny to laws regulating the exercise of individual rights in the home is not unique in constitutional law The court went on to afford "substantial deference" to the legislature's decision that the licensing scheme in New York was substantially related to an important government interest Step Two: Burden Analysis and Interest Balancing Once it is decided that a law falls within the scope of the Second Amendment, courts must decide how to review its constitutionality. 105 Under Heller, the court must apply a form of heightened scrutiny, but the circuits have to determine which incarnation of heightened scrutiny is appropriate. 106 As discussed below, the courts have applied intermediate scrutiny in most cases.107 The application of intermediate scrutiny raises two questions. First, are there any criticisms of the intermediate scrutiny test? Second, how will a gun law's proponent argue that it is reasonably or substantially related to the important government interest, and how will a gun law's opponent argue that it is not? In United States v. Marzzarella, the Third Circuit stated "that they could not be certain that the right to possess unmarked firearms in the home is excluded from the right to bear arms. Because [the Third Circuit] conclude[d] [the law] would pass constitutional muster even if it burdens protected conduct, [it did] not decide whether Marzzarella's right to bear arms was infringed." 0 8 The court decided intermediate scrutiny applied to this statute because the regulation did not unduly burden protected conduct.1 09 Thus, the law must serve an important or substantial governmental interest or goal, and the "fit between the challenged regulation and the asserted objective [must] be reasonable, not perfect."' 10 Intermediate scrutiny does not require the least restrictive means to the governments end or that the law be narrowly tailored, but it cannot burden the protected activity "more than is reasonably necessary.""' Ultimately, the court found that law enforcement has an important interest in tracing weapons to investigate crimes and the 102. Id. at Id Id. at See, e.g., Moore v. Madigan, 702 F.3d 933, 947 (7th Cir. 2012) Dist. of Columbia v. Heller, 554 U.S. 570, 628 (2008) See cases cited infra notes and accompanying text United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010) Id Id Id.

15 2014] REPLACING THE SECOND AMENDMENT 441 law only prohibits conduct aimed at making a firearm impossible to trace. 112 The Second,' 13 Fourth,1 4 Seventh,"' Tenth,1 6 and D.C. Circuits" 7 similarly used intermediate scrutiny in light of finding the historical evidence ambiguous. In Kachalsky, intermediate scrutiny applied to laws that do not burden activity within the home.11 8 The court reasoned that defending hearth and home is the "core" of the Second Amendment's purpose, and in other individual rights contexts, regulation of activity on the fringe of the right's purpose, as opposed to at the core of the right's purpose, is subject to intermediate scrutiny.11 9 Secondly, the government interest in public safety is higher outside the home than it is inside the home, and historical regulation of possessing arms in public supports that distinction.1 20 Applying intermediate scrutiny, the law was upheld because it was substantially related to the achievement of an important government interest.121 The court found the law was substantially related to public safety and crime prevention after giving substantial deference to legislative judgment and finding the legislature made reasonable inferences based on substantial evidence.1 22 The Fourth Circuit described how it expected courts to decide what scrutiny to apply in Second Amendment cases: [A]s has been the experience under the First Amendment,... courts will employ different types of scrutiny in assessing burdens on Second 112. Id Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89, 93 (2d Cir. 2012) (applying intermediate scrutiny to license to carry statute that made issuance discretionary and required the applicant demonstrate probable cause to need a gun for self-defense different from the general population) United States v. Masciandaro, 638 F.3d 458, (4th Cir. 2010) (applying intermediate scrutiny to federal law banning possession of firearm in a national park) See United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (applying intermediate scrutiny implicitly, the court upholds a law prohibiting violent misdemeanants from possessing a handgun because it bears a "substantial relation" to protecting an "important government interest," though it is not the least restrictive means) United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010) (applying intermediate scrutiny to a law prohibiting a person under a domestic protection order from possessing a handgun) Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011) (applying intermediate scrutiny to prohibition on assault rifles and large magazines) Kachalsky, 701 F.3d at 89, Id Id Id Id.

16 442 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 Amendment rights, depending on the character of the Second Amendment question presented. Under such an approach, we would take into account the nature of a person's Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government's justifications for the regulation. 123 Taking these factors into account, the court applied a similar test to the one invoked in Kachalsky: the prohibition must be "reasonably adapted to a substantial government interest." 124 Protecting public safety in parks was a substantial interest, and prohibiting the possession of concealed loaded firearms was reasonably adapted. 1 1 The law prohibited possession of a loaded firearm in a motor vehicle. 126 According to the court, it "could have been reasonably concluded that when concealed within a motor vehicle, a loaded weapon becomes even more dangerous," comparing said law to the "litany of state concealed carry prohibitions specifically identified as valid in Heller."1 27 The Tenth Circuit applied intermediate scrutiny to a statute prohibiting individuals subject to a domestic protection order from possessing firearms. 128 Upholding the law, the circuit court found it important to distinguish the burden imposed under this statute from the burden imposed by the statute at issue in Heller.1 29 The law in uestion did not infringe on the general public's Second Amendment rights. 30 Rather, the law specifically targeted a class of persons that is more likely to engage in violent behavior The pre-existing right codified by the Second Amendment has never been understood to protect a dangerous individual's right to keep and bear arms. 132 Thus, the regulated activity, possession by a person under a domestic protection order, did not trigger strict scrutiny. 1 The circuit court applied the familiar "substantially related to an important government interest" test. 134 These examples demonstrate a common theme in developing Second Amendment jurisprudence. The use of burden analysis and interest balanc United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) Id. at Id Id Id United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010) Id Id Id Id Id Id.

17 2014] REPLACING THE SECOND AMENDMENT 443 ing to decide whether gun laws are constitutional where the Hellerapproved historical analysis fails to provide answers. B. The Two Part Heller Test Will Fail to Satisfy the Gun Policy Goals of the American People Under the Heller test, the role of historical evidence is particularly important.1 35 Heller relied heavily on history and tradition to conclude that there was an individual right to keep and bear arms for self-defense in case of confrontation and to find that the right was most acute for law-abiding, responsible citizens to keep and bear arms at home. 136 However, the application of Heller has revealed two fundamental problems caused by an overreliance on history and tradition in Second Amendment jurisprudence. The ambiguity of the historical record makes it a faulty foundation on which to reason, and the preference for longstanding regulations preserves the status quo and prejudices an innovative approach to gun policy. Under step two of the Heller test, some form of heightened scrutiny is applied to laws infringing on activity protected by the Second Amendment. The circuit courts have demonstrated a preference for deciding cases under step two because of the weaknesses found in the analysis required by step one. 137 Two concerns are subsequently raised from the prospect of applying intermediate scrutiny to gun laws. The first is rooted in the validity of the test itself. The second stems from problems revealed by its application. 1. Overreliance on the Ambiguous Historical Record of American Gun Regulation A key problem with applying a historical analysis to gun regulations is that the historical record is ambiguous, and the problem lies as much in the lack of evidence as it does in the exercise. A truly objective look at historical events simply reports what happened and when. Either there is some documentation or other evidence that an event occurred or there is not any evidence. Drawing conclusions from what historical events tell us about the way people in that era lived and understood the world brings us one step further from complete objectivity as the exercise combines hard facts with 135. See, e.g., United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (applying longstanding tradition of affording different rights to juveniles to uphold law prohibiting juveniles from possessing firearms); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, (2d Cir. 2012) ("Historical prevalence of the regulation of firearms in public demonstrates that while the Second Amendment's core concerns are strongest inside hearth and home, states have long recognized a countervailing and competing set of concerns with regard to handgun ownership in public.") See supra Part II See, e.g., Rene E., 583 F.3d at 16; Kachalsky, 701 F.3d at 83-92; Reese, 627 F.3d at 802.

18 444 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 personal opinion. Simply put, trying to synthesize the mindset of a nation's people-a body consisting of countless demographics; life experiences; and legal, political, and economic interests-based on dozens of legislative records and legal commentaries that support equally plausible yet conflicting conclusions is an exercise that necessitates far too many assumptions to be reliable. Yet, legislative records and legal commentaries are what the Supreme Court determined are the best means to decide when gun regulations are prohibited by the Constitution. The evidence that overreliance on an ambiguous historical record leads to inconsistent results comes directly from the cases. 138 For example, in Heller itself, the four dissenting justices disagreed with the majority's conclusion that there was an individual right at all based on the historical record. 139 In Moore, the Illinois law prohibiting carrying guns in public is an example of innovative lawmaking that sought to enforce legislative judgment on the danger of possessing guns in public.140 According to the majority, the law limited conduct too broadly to be comparable to a historical analogue that created a narrow exclusion to the scope of the Second Amendment However, the dissent in Moore was not convinced. 142 Systematically, the dissent analyzed the same evidence relied on by the majority and Heller-Blackstone Commentaries, the Statute of Northampton, Sir John Knight's Case, and Edward Coke's commentaries, among others-to persuasively argue that there was no right to carry a loaded gun outside the home understood when the Second Amendment was written.1 43 Similarly, the historical analysis in Kachalsky drew the court to conclude that state regulation banning most people from possessing arms in public was constitutional, whereas the majority in Moore concluded that the historical evidence prevented the state from banning most people from possessing arms in public. 1 " The weakness of relying on an ambiguous historical record is that it will lead to inconsistency if judges cherry pick the historical evidence needed to 138. See, e.g., Dist. of Columbia v. Heller, 554 U.S. 570, (2008) (Stevens, J., dissenting); Moore v. Madigan, 702 F.3d 933, 947 (7th Cir. 2012) (Williams, J., dissenting); Kachalsky, 701 F.3d at Heller, 554 U.S. at (Stevens, J., dissenting) Moore, 702 F.3d at Id. at Id. (Williams, J., dissenting) Id. (Williams, J., dissenting) ("I am not convinced that the implication of the Heller and McDonald decisions is that the Second Amendment right to have ready-to-use firearms for potential self-defense extends beyond the home."); see also Charles, supra note 57, at Compare Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 97 (2d Cir. 2012), with Moore, 702 F.3d at

19 2014] REPLACING THE SECOND AMENDMENT 445 strike down or uphold a gun law. Inevitably, both sides of the gun policy debate should feel anxious that judges, rather than legislatures, have such power over gun policy. A finding that the historical evidence demonstrates that an activity is not protected by the Second Amendment, and thus subject to rational basis scrutiny, is a sure way to uphold the regulation. At the same time, finding that the historical evidence demonstrates that the activity is stringently protected by the Second Amendment is a sure way to strike the law down. The evidence of this effect is already showing true through the case law discussed above. Notwithstanding the potential for abuse, the ambiguous record has encouraged the circuit courts to assume, without resort to exhaustive historical analysis, that the Second Amendment applies and subjects the law to a balancing test. The idea that the Heller test could dissolve into a balancing inquiry is bad news for the critics of interestbalancing tests-including, most importantly, the Heller majority that rejected a proportionality test. The second concern with the Heller test's reliance on history is that the preference for longstanding gun laws prejudices innovative approaches to gun policy. A fair critique to this argument would be that, on balance, the status quo of American gun policy works for a majority of Americans. As this Note has mentioned, the argument for a new constitutional amendment rest in large part on the presumption that a change to gun policy is needed to deal with the contemporary problems Americans face. What one might describe as longstanding or traditional gun regulations, laws prohibiting juveniles from possessing guns or rohibiting fraudulent permit applications, are constitutional under Heller. 1 Yet the prohibited activity persists in our society, demonstrating that more innovative methods of restricting dangerous gun activity may be needed to further the public safety interests. Unfortunately, innovative methods of gun legislation will not enjoy the presumption of validity these older laws have under Heller. For example, in United States v. Skoien, the Seventh Circuit explained a very important limitation Heller places on innovative gun laws. 1 6 Justice Scalia opined that laws prohibiting felons from possessing arms are constitutional because those laws are "longstanding." 47 However, the federal prohibition on felons and the mentally ill did not arise until the twentieth century.1 48 Justice Breyer called attention to the majority's poor reasoning on this point.1 49 It would make little sense, the Seventh Circuit stated, "that 145. See generally United States v. Rene E., 583 F.3d 8 (1st Cir. 2009); Hightower v. City of Bos., 822 F. Supp. 2d 38 (D. Mass. 2011) United States v. Skoien, 614 F.3d 638, (7th Cir. 2010) (en banc) Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008) Skoien, 614 F.3d at 641 (en banc) Heller, 554 U.S. at 641 (Breyer, J., dissenting).

20 446 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 a [relatively new statute] is unconstitutional in 2010 but 50 will become constitutional by 2043, when it will be 'longstanding."' Indeed, it makes little sense. The shortcoming with Heller's unyielding reliance on history is that it handcuffs our legislators to the laws of the past regardless of the problems faced today. Individuals who are predisposed to violence because of mental illness or criminal history pose a grave safety threat. 151 For public safety reasons, our nation has historically disqualified unsafe individuals from possessing arms. 152 Yet one of the most often repeated claims of the gun rights proponents is that laws prohibitin individuals from possessing guns only deters law-abiding individuals. To the extent that criminals or the mentally ill may choose to break the law anyway, they are right. Those individuals will find an illegal way to get their guns. So, the historic disqualification of dangerous individuals is not enough to deal with a contemporary problem. Innovative law drafting could disqualify the cohabitants of dangerous individuals from possessing firearms. On the other hand, a national registration system could require mandatory disclosure of all relatives with mental illnesses. Better still, mandatory safety training could include a personality test like the ones used for potential law enforcers to prevent individuals with undiagnosed mental illnesses from possessing weapons. Additionally, convictions that disqualify individuals from possessing firearms could be expanded from felonies and violent misdemeanors to drug possession, driving while intoxicated, or drunk and disorderly conduct. Yet, these laws will not be presumptively lawful, as this country has never pursued such broad prohibitions to curtail dangerous individuals' access to arms in the past. Without a historical analogue, laws like these would have to be justified under heightened scrutiny Skoien, 614 F.3d at 641 (en banc). This flaw was discussed in Justice Breyer's Heller dissent. Heller, 554 U.S. at 641 (Breyer, J., dissenting) E. Lea Johnston, Vulnerability and Just Dessert: A Theory of Sentencing and Mental Illness, 103 J. CRiM. L. & CRIMINOLOGY (2013); Randy Borum et al., Threat Assessment: Defining an Approach for Evaluating Risk of Targeted Violence, 17 BEHAV. Sci. & L (1999); Richard A. Friedman, In Gun Debate, a Misguided Focus on Mental Illness, N.Y. TIMEs, Dec. 17, 2012, Categories of Prohibited People Policy Summary, LAW CTR. To PREVENT GUN VIOLENCE, (Sept. 29, 2013), Missouri: Anti-Gun Legislation Introduced That Would Turn Law-Abiding Gun Owners into Felons, NRA-LA (Feb. 13, 2013), ("Criminals-by definition-violate laws, especially gun control laws. They will never surrender their firearms, or comply with any gun control scheme.").

21 2014] REPLACING THE SECOND AMENDMENT 447 Another limitation of the reliance on history plays itself out clearly in the context of regulations targeting classifications of weapons. For example, Senator Feinstein's Assault Weapons Ban of 2013 will prohibit the sale of assault rifles and magazines with the capacity to hold more than ten rounds of ammunition. 154 According to Heller, there is a historical tradition of prohibiting arms that are "common" or "dangerous and unusual." 155 However, classifying arms poses a challenge; in fact, "there may not be a perfect way of reading Heller on this point."' 56 To the gun rights proponents, semi-automatic rifles are commonly owned for lawful purposes, and they have been commonly owned since their predecessors were invented during the nineteenth century.' 57 For example, the first lever-action repeating rifle was manufactured in But take this rifle as an exercise applying Heller. It has been a popular arm since its invention, with sales totaling in the millions.' 59 But, had Heller been in place when it was invented, a legal challenge to its prohibition would not have been able to claim it was common.160 Should a weapon's popularity alone justify protection under the Second Amendment? The gun rights proponent will answer yes. The gun control proponent will argue that at a certain point a weapon becomes so lethal that its utility as a killing machine is more than necessary to fulfill the purpose of self-defense, and weapons fitting that category fall outside the scope of the Second Amendment. Until the Supreme Court or the people say otherwise, what is necessary for self-defense comes down to individual judgments about the world, objectively measured by the aggregate popularity of a weapon. Due to their popularity among gun owners, a ban on semi-automatic rifles and large magazines is not likely to survive a constitutional challenge on the ground that they are dangerous and unusual. 161 For the gun control proponent, it is unfortunate that a law banning these weapons was not enacted before they became common. In sum, reliance on traditionalism to decide the meaning of the Second Amendment leads to two problems. First, an ambiguous historical record leaves the body of law subject to inconsistency and open to abuse. Second, justifying the existence of modem gun laws on the grounds that they are 154. S. 150, 113th Cong. (2013);.Stopping the Spread of Deadly Assault Weapons, DIANNE FEINSTEIN, (last visited Mar. 27, 2013) Heller, 554 U.S. at Volokh, supra note 9, at See O'Shea, supra note 38; Volokh, supra note 9, at O'Shea, supra note 38, at Id. at Id See id. at But see Volokh, supra note 9, at

22 448 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 traditional is valuable to the reduction of gun-related tragedies only insofar as the old laws are effective at reducing them. If the rise in domestic gun violence and the polarization of the gun policy debate are indications that the current American gun policy is neither affecting its purpose nor satisfactorily protecting individual rights, then the Heller test must be evaluated for its ability to accommodate innovative changes. As discussed above, the first step of the Heller test is not likely to consistently accommodate innovative changes because the historical ambiguity is subject to abuse, undercutting consistency, and the reliance on traditionalism prejudices new laws With this in mind, the next section discusses whether the second step of the Heller test can accommodate changes in light of the first step's inability to do so. 2. The Cure to Step One is no Cure at All The majority of circuit court cases reviewing gun laws have decided intermediate scrutiny should apply because the law in question did not impose a substantial burden on the core of the Second Amendment right, thereby combining aspects of a burden analysis and an interest-balancing approach.1 63 The intermediate scrutiny test requires the law to be substantially or reasonabl related to a significant, important, or substantial government interest The first concern raised by intermediate scrutiny is rooted in its criticism, particularly among conservatives and libertarians, for being inconsistent and judge empowering.1 65 The second concern is rooted in its application; namely, the absence of empirical data to support a legislature's conclusion that a un regulation is substantially related to public safety or law enforcement. 1 6 The very premise that more gun regulation is effective at reducing gun violence is contentious because the empirical evidence of a link is inconclusive.1 67 The following discussion will demonstrate that step two fails to fill the void left in lieu of step one's deficiencies. In sum, the current constitutional framework for the Second Amendment will fail. In this instance, the persuasiveness of the criticisms against interestbalancing and burden analysis is less important than the group that makes them. Justice Scalia is on the record as an ardent opponent of burden analysis and intermediate scrutiny.1 68 In the Heller opinion, Scalia rejected 162. See Volokh, supra note 9, at See supra Part II.A.2.; Miller, supra note 57, at See supra Part IH.A Miller, supra note 57, at 871; Gould, supra note 20, at 1536, Miller, supra note 57, at 869; Gould, supra note 20, at TUSHNET, supra note 4, at 101; DOHERTY, supra note Gould, supra note 20, at 1568, 1574.

23 2014] REPLACING THE SECOND AMENDMENT 449 Breyer's proportionality test because: [N]o 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 governmenteven the Third Branch of Government-the power to decide on a caseby-case basis whether the right is really worth insisting upon. 169 The rejection of Breyer's proportionality test raises an important question: is there any difference between applying a proportionality test and applying strict, intermediate, or rational basis scrutiny? The proportionality test "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests." 170 The distinction is that the "correct proportion" that passes the test under the proportionality analysis is up to the judge.171 On the other hand, the "correct proportion" that passes the test under traditional levels of scrutiny is fixed. The law must be narrowly tailored to a compelling state interest, 173 substantially related to an important state interest, 174 or rationally related to a legitimate state interest for each respective standard. 175 In theory, this makes the established levels of scrutiny less susceptible to the policy whims of judges than a proportionality test. But, the elements of intermediate scrutiny are vague and ambiguous. What constitutes an "important" government interest? What does not? What difference is there between a means that is related to the ends and a means that is substantially related to its ends? In practice, the real difference between a proportionality test and intermediate scrutiny is that when applying intermediate scrutiny the judge must "say the magic words" for the proportion to be constitutional rather than find the law constitutional because it is proportional.1 76 In light of this similarity, it is unlikely that the Heller majority would accept the circuit courts' decision to turn to intermediate scrutiny as the majority did when it rejected a proportionality test. For Justice Scalia, a conservative and proponent of restricted government, and gun rights proponents, most of which share similar ideological values, the concept that a fundamental right to keep and carry arms could be infringed as long as the means of regulation is substantially related to 169. Dist. of Columbia v. Heller, 554 U.S. 570, 634 (2008) Id. at Id Id Gould, supra note 20, at 1566 (strict scrutiny) See supra Part III.A.2 (intermediate scrutiny) Heller, 554 U.S. at 628 n.20 (rational basis scrutiny) Id. at 690.

24 450 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 public safety is unacceptable. 177 For those that consider the right to keep and bear arms to be sacrosanct, it is too easy for the government to take away that right under intermediate scrutiny. In light of the public and judicial opposition to the use of interest-balancing, the test currently being employed by a majority of circuit courts is an unsustainable means for reviewing Second Amendment cases. For as long as intermediate scrutiny dominates Second Amendment jurisprudence, as it has done since Heller, it will cause gun rights proponents to fear for the safety of their sacrosanct right, and if the practice persists, the conservative majority of the Court is likely to compel a more stringent level of review. The second concern raised by the use of intermediate scrutiny comes from the difficulty law makers will have demonstrating that the regulation is substantially related to an important government interest. Take, for example, the proposed Assault Weapons Ban. 178 There is a lack of empirical evidence showing that banning assault weapons will increase public safety.1 79 In fact, gun rights proponents arduously argue that banning assault weapons will decrease public safety. 80 Gun rights proponents do not have greater support for their position. On the contrary, the problem is that the available studies on the relation between gun laws and the reduction or increase of gun tragedies are inconclusive.'a8 In the absence of clear empirical support for one side of the debate over the other, parties interested in American gun policy tend to validate the studies supporting the conclusion they want over equivalent studies suggesting the opposite conclusion. Professor Tushnet described the stalemate eloquently: It would be nice to think that disagreements over policy could be resolved by empirical evidence. And maybe some can-but not, I think, policy disputes about which people care intensely. The reason is that all empirical studies are imperfect, as good social scientists admit. Partisans will identify real flaws-that is, flaws that social scientists would agree are defects-in studies that point to conclusions with which they disagree, and try to explain away the flaws their opponents identify in 177. Id TUSHNET, supra note 4, at Id DOHERTY, supra note 11, at (arguing that the failure of the D.C. gun ban to reduce gun crime rates, together with national studies on the instances of defensive uses of firearms, tends to prove the theory that more guns equals less crime). But see TUSHNET, supra note 4, at (describing peer reviews that found the more guns less crime model produced inconclusive results) DOHERTY, supra note 11; TUSHNET, supra note 4, at 101; Volokh, supra note 9, at 1466 ("Scientific proof of any of these theories is very hard to get.").

25 2014]1 REPLACING THE SECOND AMENDMENT 451 the studies that support the policies with which they agree. 182 Diametrically opposed legislators have the monumental task of finding compromise on gun regulations without clear empirical support for what is or is not effective. If gun laws are challenged, then law makers will most likely have to demonstrate (again) that the law was substantially related to public safety under intermediate scrutiny.1 83 Unfortunately, as much empirical evidence exists undercutting the premise that less guns equals less crime as exists supporting it, making the successful defense of future gun laws difficult.1 84 In Illinois, a flat ban on gun possession outside the home relied on that premise, fewer guns in public equals less gun violence in public, but in Moore, the studies cited to support and to oppose the legislation cancelled each other Accordingly, the court found that Illinois could only prove the ban on public possession of arms for the general population was rationally related to public safety rather than substantially related or narrowly tailored under heightened scrutiny.1 86 In contrast, federal bans on the possession of arms by felons, domestic violence misdemeanants, or ersons under domestic protection orders have been held to pass scrutiny. The means, for example, keeping guns away from those with a violent history, are more narrowly tailored to achieving public safety. The difference is the breadth with which the law regulates. The greater a law's relation to public safety, such as requiring guns to have serial numbers to enable tracking weapons used in crimes 188 and requiring back ound checks on sales to screen for criminal or mental health records, 89 the greater the probability that the law is constitutional.1 90 On the other hand, prohibitions affecting broad classes of people, weapons, places to carry, or means of sale run a high risk of being unconstitutional because there is less evidence to show that the law is substantially related to public safety-as demonstrated in Moore. 191 What does the interplay between the breadth of a regulation and the available studies on the relation between regulation and gun violence tell us 182. TUSHNET, supra note 4, at See supra Part III.A TUSHNET, supra note Moore v. Madigan, 702 F.3d 933, (7th Cir. 2012) Id See supra Part III.A United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010) E.g., United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011) Not all relationships must be proven by empirical evidence. The concept that prohibiting anyone from possessing a machine gun for self-defense is sufficiently related to public safety does not need empirical support, it is just common sense Moore, 702 F.3d at

26 452 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:427 about the efficiency of the Heller test? This exercise demonstrates that law makers, regardless of how great the political support for gun control may be, are limited by the burden of heightened judicial scrutiny because they lack the empirical basis to show a relationship between broad gun regulation and gun tragedy prevention exists. Arguably, this strikes a balance between gun rights and gun control by preventing legislators from unnecessarily burdening the rights of lawful gun owners. Balance is a good thing. But the trouble is that we don't know what burdens are necessary until we can prove that they are effective, and we can't prove that they are effective until they are enacted. If the assumption of this article is true-that Americans seek a change in gun policy that effectively prevents more gun tragedies from happening-then heightened scrutiny is going to be a real impediment to innovative law making, leaving Americans seeking change dissatisfied with the current state of the law. C. Summation: Under Heller, Nobody Wins The previous discussion demonstrates that the Heller test will fail the American people's desire for the right to self-defense and effective gun tragedy prevention because of the irreconcilable demands imposed by the opinion. Heller provides that history and tradition are to play a dominant role in defining what gun regulations are constitutionally permissible.1 92 However, courts prefer justifying enacted laws by subjecting them to balancing rather than historical analysis because of the flaws inherent in step one of the test. Overreliance on the historical record subjects American gun policy to the policy preferences of judges and prejudices innovative gun regulation regardless of political support. In light of the flaws in step one, the circuit courts created step two to try and fix the problem. Unfortunately, interest balancing has damning flaws too. Most importantly, conservatives and libertarians, whether on the Court, duly elected, or members of the general public, are not going to be satisfied that their Second Amendment rights are being sufficiently protected under "magic words" intermediate scrutiny. Likewise, the correlation between a lack of empirical support and the imposition of heightened scrutiny will frustrate gun control proponents. Duly elected laws, supported by a majority of the people's elected representatives, are at risk of being struck down if they are written too broadly. However, broad prohibitions on the sale of semiautomatic assault rifles and large capacity magazines, broad no-carry areas near sensitive places such as schools, or broad disqualifications from Second Amendment protection of individuals living with or near dangerous persons may be the sort of innovative legislation needed to effectively diminish the number of gun tragedies in the United States. Since the current 192. See Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008).

27 2014] REPLACING THE SECOND AMENDMENT 453 data on the effectiveness of gun regulation is generally inconclusive, there is no way to know if these measures will be effective until they are implemented and studied. However, they cannot be implemented until studies exist that show they are effective. In the Heller test, nobody wins. The prejudice against innovative gun laws prevents the exploration of a more effective gun policy than the one currently in place. In time, the Supreme Court could adjust its test. But the American people need not wait for the Supreme Court to adjust its precedent. The American people can act now and definitively say what the right to self-defense should encompass. It can be done in a way that honors the principals enshrined by our Founders but provides for a mechanism to deal with the demands of contemporary society. Part IV provides a rough framework for an amendment that aims to accomplish those objectives. 19 IV. A NEW DAY FOR GUN POLICY In the very beginning of this article, the civic and personal purposes of the Second Amendment were discussed. 194 A constitutional amendment repealing and replacing the Second Amendment should honor those purposes, and it should provide a mechanism for innovative regulation-an objective the Heller test fails to accomplish. To recap, the three purposes of the individual right to bear arms are for self-defense in case of confrontation with criminals, to have a citizenry capable of forcefully opgosing tyrannical rule, and for national defense in case of foreign invasion. This Note proposes that the purposes of the Second Amendment may be preserved by banning the commercial sale of ammunition while granting the exclusive right to sell ammunition to the states. By giving the states the power to regulate how ammunition is sold to its citizens, the ability of state militias to rise up against an invading foreign power or a tyrannical federal government will be preserved. If the time should come that a state agrees to ban together and confront their oppressors, the state will be able to open its ammunition supply accordingly. Furthermore local law enforcement is in a better position than federal law enforcement to understand the ammunition needs of its citizens. They will be familiar with local shooting range clubs and the needs of hunters. Local law enforcement will also be in the best position to track suspicious sales of ammunition and thwart straw purchases for criminal enterprises. The check on state power could be a federal floor, a federal minimum of available ammunition for lawful purposes. Further 193. This framework for a "new Second Amendment" is not meant to be a comprehensive guide to amending the Constitution. Rather, it is meant to suggest one possibility and to start the conversation See supra Part H See generally Heller, 554 U.S. at 570.