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14 Geo. J.L. & Pub. Pol'y 101 (2016)
Navigating the Breyer Patch

handle is hein.journals/geojlap14 and id is 107 raw text is: Navigating the Breyer Patch DONALD KILMER* INTRODUCTION .......................................... 101 I. THE PROBLEM ....................................... 102 II. OBSERVATIONS FROM THE FIELD .......................... 103 III. HYPOTHETICAL BECOMES REALITY ........................ 107 C ONCLUSION ............................................ 109 INTRODUCTION Please Br'er Fox, don't throw me in the briar patch. -Br'er Rabbit With apologies to Robert Roosevelt, Joel Chandler Harris2 and Associate Justice Stephen Breyer for the mashup, it is the contention of this short note that we are entering a dangerous phase in the development of Second Amendment jurisprudence. The broad principles of the right to keep and bear arms have been laid down in the landmark decisions of Heller3 and McDonald.4 But since issuing the latter decision, the Court has not deigned to amplify, clarify or promulgate any methodology for scrutinizing state, local and federal statutes that implicate or violate Second Amendment rights. It is as if the Supreme Court has dressed the Second Amendment up in the clothing of a fundamental, individual right, but when our hero tries to engage this Tar-Baby of a right he gets stuck. Whether our hero (and the constitutional right of self-defense) survives will depend on whether Br'er Rabbit can negoti- ate the thickets, thorns and briars of a judiciary that approaches constitutional decisions in ways that are often confusing and contradictory. * Adjunct Professor of Law. Lincoln Law School of San Jose. Courses: Constitutional Law I & II. Electives: Firearms Law-Constitutions, Statutes, and Regulations; Second Amendment: Constitutional Touchstone. Solo Practitioner: Family Law, Criminal Law & Civil Rights in San Jose, California. Email: Don@DKLawOffice.com. © 2016, Donald Kilmer. 1. Br'er Rabbit is a character from African, African-American and Native-American folklore. The stories were popularized by Disney in the 1946 animated film Song of the South. Br'er Rabbit is a trickster who lives by his wits. He is presented here as a protagonist. His antagonist is Br'er Fox. 2. Among the many story tellers who popularized the folklore of Br'er Rabbit, Br'er Fox and Br'er Bear. 3. District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment secures a civilian (non-militia) fundamental, individual right to keep and bear arms). 4. McDonald v. City of Chicago, 561 U.S. 742 (2010) (holding that the Second Amendment is enforceable against state and local governments).

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