50 Santa Clara L. Rev. 1263 (2010)
Administering the Second Amendment: Law, Politics, and Taxonomy

handle is hein.journals/saclr50 and id is 1287 raw text is: ADMINISTERING THE SECOND AMENDMENT:
Nicholas J. Johnson*
Predicting the trajectory of the right to keep and bear
arms is difficult. The task will become even harder if, as I
expect, the United States Supreme Court applies the Second
Amendment to the states in McDonald v. Chicago.' This
article anticipates the post-McDonald landscape by assessing
the right to arms in the context of several state regulations
and the arguments that might be employed as challenges to
them unfold.
So far, the core test for determining the scope of the
individual right to arms is the common use standard
articulated in District of Columbia v. Heller.2 Measured
against that, standard firearm regulations fit into three
categories. The first category contains laws that are easily
administered under the common use standard.3
The second category-and the primary focus of this
article-consists of laws that can be approached but not fully
resolved under the common use standard.4 These laws pose
challenges of taxonomy5 that invite embellishment and
manipulation of the common use standard.
Some regulations fit into a third category that is entirely
*Professor of Law, Fordham University School of Law, J.D. Harvard Law
School, 1984. Thanks to Gene Hoffman for his comments and Tameem
Zainulbhai for his research and editing.
1. McDonald v. City of Chicago, 130 S. Ct. 1317 (2010).
2. Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2817 (2008) (holding that
firearms in common use for lawful self-defense are constitutionally protected).
3. See infra Part I.
4. See infra Part II.
5. I use the term taxonomy loosely to incorporate both substantive and
political variables.


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