Proposals for federal gun control have recently focused on expanding background checks and recordkeeping requirements for private firearms transfers. This Article places the debate about such legislation in a fuller context that includes the actions of the executive and judicial branches, as well as current gun control efforts in the states. This enables a more informed appraisal of the anti-slippery slope arguments that motivate opposition to such laws. I examine mechanisms that can make descending the slippery slope more or less likely, focusing on judicial enforcement of the Second Amendment right to arms in the federal courts. A study of 225 lower federal court Second Amendment decisions from June 2008 to October 2013 reveals that, since District of Columbia v. Heller, most courts have taken a highly deferential approach to legislation, and Second Amendment limits on government action have been imposed—all but exclusively— by judges appointed by Republican presidents. The Article closes by considering possible bases for legislative compromise. Future proposals for expanded background checks should: (1) structure the check to minimize recordable information about transfers, and (2) remedy the lower courts’ clearest shortfall in enforcing the post-Heller Second Amendment by mandating nationwide handgun carry permit reciprocity.
O'Shea, Michael P., "The Steepness of the Slippery Slope: Second Amendment Litigation in the Lower Federal Courts and What It Has to Do with Background Recordkeeping Legislation Symposium Article" (2014). Connecticut Law Review. 244.