David T. Hardy

Document Type

Article

Abstract

In District of Columbia v. Heller and McDonald v. Chicago, the U.S. Supreme Court recognized an individual right to arms. The Court offered limited guidance as to standard of review, only ruling out rational basis. This Article takes a pragmatic approach to the standard of review issue. First, it explores the practical basis for heightened scrutiny. Judicial review is, at its base, anti-majoritarian. It is therefore often appropriate to employ the loose standard of rational basis. In some contexts, however, majoritarianism is less dependable: the majority may be tempted to unfairly burden the interests of the minority. Here, courts properly employ heightened standards of review. I suggest that this rationale is applicable in the context of firearms control. While, on a national basis, firearms owners are a sufficiently large group to legislatively defend their legitimate interests, the story is different at the state level. The strictest forms of gun control originate in states where gun owners comprise only one-eighth to one-fifth of the population, and have little legislative influence. The result is legislation that is unsupported by existing criminological data, and sometimes serves no demonstrable purpose other than burdening or annoying gun owners. This Article closes by suggesting that varying levels of scrutiny, drawn from election-law cases, are appropriate. The least burdensome legislation is weighed under a near-rational basis standard. Other measures are properly weighed under intermediate review—genuine intermediate review, where the legislation must be supported by hard data, or under stricter exacting scrutiny. Finally, measures regulating what the Court has termed the “core right” to arms—possession by law-abiding citizens in the home—should be evaluated under strict scrutiny.

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