Scribble Scrabble, the Second Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal and Joyce Lee Malcolm

Patrick J. Charles[*]

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In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate[1] over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago.[2]  This Article sets forth to illuminate two aspects of that debate.  The first is Professor Rosenthal’s concern on the constitutionality of open-carry or conceal-carry prohibitions.  He inaccurately claims that the founders left insufficient historical evidence to support such prohibitions.[3]  Thus this Article addresses those concerns through the use of “historical guideposts.”[4]  The second aspect this Article sets forth to address is Rosenthal and Malcolm’s characterization of the Second Amendment’s “well-regulated militia” language,[5] for it highlights a historical and legal error that continues to pollute contemporary Second Amendment jurisprudence.  As this Article will explain, a “well-regulated militia” does not merely equate to “well-trained,”[6] nor is it a vehicle to analyze gun control regulations[7] in the constraints of the opinion in District of Columbia v. Heller.[8]

McDonald v. Chicago: Which Standard of Scrutiny Should Apply to Gun-Control Laws?

Lawrence Rosenthal[*] & Joyce Lee Malcolm[**]

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Introduction

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago.  Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow law enforcement officials to protect the community.  Turning to the practical consequences of Chicago and Washington, D.C.'s recent gun-control laws, which make owning a gun nearly impossible in those cities, Professor Malcolm argues for a standard of strict scrutiny for all gun-control laws in Part II.  Finally, in Part III, Professor Rosenthal replies.

St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment

Saul Cornell[*]

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More than two hundred years after the publication of his influential edition of Blackstone’s Commentaries, St. George Tucker, the distinguished Jeffersonian jurist, is at the center of controversy.  Gun-rights advocates claim Tucker as their spiritual forebear, but opponents of this view argue that Tucker’s interpretation of the Second Amendment[1] can not be pressed into service in the modern gun debate without doing great violence to his thinking.  The stakes in this intellectual debate have been raised in the wake of the Supreme Court’s historic decision in District of Columbia v. Heller.[2]  In that decision, two very different interpretations of Tucker’s views of the Second Amendment were set out.  Justice Scalia adopted the gun-rights view of Tucker and Justice Stevens took the opposing view. One of the central points of contention in this modern debate over Tucker arises from the learned judge’s earliest discussion of the Second Amendment in his unpublished law lectures.[3]

Heller's Future in the Lower Courts

By Glenn H. Reynolds[*] & Brannon P. Denning[**]

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The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,[1] and the buzz has been considerable.  Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point.  What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.

The repudiation of this extensive body of case law[2]  suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws.  Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts.

If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity.  Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions.

In the pages that follow, we take a look at these aspects of Heller.  The triumph of the Standard Model of the Second Amendment is examined in Part I.  Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic.  Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls post-Heller.