U.S. Supreme Court's new Second Amendment jurisprudence: Effects on law, research, and practice

For nearly 70 years, from 1940 to 2007, the Supreme Court did not decide a case directly addressing the U.S. Constitution's Second Amendment “… right to keep and bear arms ….” Therefore, for many years, there was remarkable uniformity among lower federal courts: no federal appellate court struck down any gun law as a Second Amendment violation. Then in 2008, with District of Columbia v. Heller, and again in 2010 with McDonald v. City of Chicago, the Supreme Court altered its jurisprudence. The Court decided that the Second Amendment conferred an individual right to own handguns in the home (Heller), a right incorporated into the 14th Amendment as a limit on both federal and state/local laws (McDonald). In so doing, the Court struck down handgun bans in Washington, DC and Chicago. Nevertheless, the Court concluded that the scope of Second Amendment right was “not unlimited,” and listed several “presumptively lawful” types of gun laws. But the Court left many important questions unanswered, including: 1) the full scope of the amendment, including whether the right extends beyond the home; and 2) the standard of review to be applied in challenges to gun laws other than handgun bans. Lower federal courts and policymakers have struggled with these issues since Heller. Courts and legislators may be assisted by empirical and legal research. This presentation will: 1) review the history of Second Amendment case law; 2) summarize the Supreme Court's recent decisions; and 3) discuss their implications for researchers, practitioners, and legislators.