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80 Geo. Wash. L. Rev. 703 (2011-2012)
Justice Breyer's Triumph in the Third Battle over the Second Amendment

handle is hein.journals/gwlr80 and id is 709 raw text is: Justice Breyer's Triumph in the Third Battle over the Second Amendment Allen Rostron* ABSTRACT 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 organ- ized 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 un- answered. 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 Hel- ler and McDonald. Frustrated by the predominantly historical approach and the puzzling categorizations suggested by Justice Scalia and the other mem- bers of the Heller and McDonald majorities, the lower courts have focused on contemporary public policy interests and applied a form of intermediate scru- tiny 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 los- ing side of both of the Supreme Court's recent clashes over the right to keep and bear arms. TABLE OF CONTENTS INTRODUCTION ................................................... 704 I. THE FIRST BATTLE: DISTRICT OF COLUMBIA V. HELLER .................................... 708 A. Law-Abiding, Responsible Citizens .................. 710 B. Arms in Common Use at the Time .................. 710 C. The List of Presumptively Lawful Regulatory Measures ................................ 712 * William R. Jacques Constitutional Law Scholar and Professor of Law, University of Missouri-Kansas City (UMKC) School of Law. The UMKC Law Foundation generously sup- ported the research and writing of this Article. The author worked from 1999 to 2003 as a staff attorney for the Brady Center to Prevent Gun Violence. The views expressed in this Article are strictly his own and do not represent the positions of any other person or entity. April 2012 Vol. 80 No. 3

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