Abstract
In 2008, the Supreme Court recognized that the Second Amendment guaranteed an individual right to arms: in 2010, it classed that right as fundamental, for Fourteenth Amendment purposes. In the period since, the Court has (with one minor exception) rejected all petitions for certiorari. The result has been widespread and serious divisions among the lower courts. Where a plaintiff brings his or her action will determine whether one, two, or no standards of review apply. Within the Circuits that apply two standards, the choice of forum will determine where to draw the line between the stricter and less strict standard, as well as whether the two standards are strict scrutiny/intermediate review or intermediate review/rational basis. Where intermediate review is applicable, the suit’s location will determine whether in practice that means almost strict scrutiny, or barely-disguised rational basis. Choice of forum will likewise dictate whether Second Amendment as-applied challenges are permitted or forbidden.
This article serves to highlight the near-chaos that has fallen upon the Circuits as they attempt to interpret the Court’s teachings absent the Court’s guidance. It will examine and critique the divisions (and divisions within the divisions) that have developed. It will then suggest what the courts can do to establish a uniform and practicable standard of review.
Recommended Citation
David T. Hardy,
Standards of Review, the Second Amendment, and Doctrinal Chaos,
43
S. Ill. U. L.J.
91
(2018).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol43/iss1/4