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The Federal Circuits' Second Amendment Doctrines David SAINT LOUIS UNIVERSITY SCHOOL OF LAW THE FEDERAL CIRCUITS’ SECOND AMENDMENT DOCTRINES DAVID B. KOPEL* AND JOSEPH G.S. GREENLEE** TABLE OF CONTENTS I. HELLER’S RULES ................................................................................... 196 II. MCDONALD’S RULES ............................................................................ 201 A. Core McDonald Principles ............................................................. 201 B. What Dates for Originalism? .......................................................... 202 III. IS THE SECOND AMENDMENT ONLY ABOUT GUNS FOR SELF- DEFENSE? ............................................................................................. 204 A. All Lawful Uses, Including Hunting and Target Practice ............... 204 B. Right to Practice and Training ....................................................... 207 C. Militia .............................................................................................. 208 IV. THE EMERGENCE OF THE TWO-PART TEST .......................................... 212 V. “PRESUMPTIVELY LAWFUL” REGULATION ........................................... 214 A. “Presumptively” in Step One .......................................................... 221 B. “Presumptively” in Step Two .......................................................... 223 C. As-applied Challenges to Presumptively Lawful Regulations......... 226 VI. APPLYING STEP ONE OF THE TWO-PART TEST: DOES THE CHALLENGED LAW IMPOSE A BURDEN ON CONDUCT FALLING WITHIN THE SCOPE OF THE SECOND AMENDMENT’S GUARANTEE? ..... 229 A. Which Arms are Second Amendment Arms? ................................... 230 1. Pipe Bombs ................................................................................ 233 2. Machine Guns ............................................................................ 233 3. Suppressors, Grenades, and Directional Mines .......................... 236 4. Obliterated Serial Numbers ........................................................ 236 5. Bans on Certain Ammunition .................................................... 237 6. Bans on Guns and Magazines .................................................... 238 B. Types of Individuals ........................................................................ 241 1. Domestic Violence Misdemeanants and Persons Subject to Domestic Violence Protective Orders ........................................ 242 * Adjunct Professor of Constitutional Law, Denver University, Sturm College of Law; Research Director, Independence Institute, Denver, Colorado; Associate Policy Analyst, Cato Institute, Washington, D.C., http://davekopel.org. The authors would like to thank Travis Young for his assistance. ** J.D. 2014, Denver University, Sturm College of Law, http://josephgreenlee.org. 193 SAINT LOUIS UNIVERSITY SCHOOL OF LAW 194 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 61:193 2. Addicts or Users of Illegal Drugs............................................... 244 3. Juveniles and Young Adults ...................................................... 245 4. Aliens ......................................................................................... 246 5. Use of a Gun in a Crime ............................................................. 249 6. Mentally Ill................................................................................. 250 C. Firearms Sales and Transfers ......................................................... 250 1. Purchase and Sale of Firearms ................................................... 250 2. Gun Show Sales ......................................................................... 251 3. Restrictions on Interstate Purchases ........................................... 251 4. Return of Seized Firearms .......................................................... 252 5. Transfers to Prohibited Persons ................................................. 253 D. Storage Laws and Licensing Fees ................................................... 256 VII. THE SECOND AMENDMENT OUTSIDE THE HOME.................................. 256 A. Right Exists Outside the Home ........................................................ 258 B. Unable to Decide Whether Right Exists .......................................... 262 1. Fourth Circuit ............................................................................. 262 2. Third Circuit ............................................................................... 265 3. First Circuit ................................................................................ 266 C. Right Exists Outside the Home, but in a Very Weak Form ............. 267 D. No Right to Concealed Carry Outside the Home ............................ 268 E. Right to Carry on Government Property ......................................... 269 F. Carrying on Private Property Against the Wishes of the Owner .... 272 G. Qualified Immunity and Right to Carry .......................................... 273 VIII. WHAT LEVEL OF SCRUTINY APPLIES? .................................................. 274 A. How to Choose Between Strict and Intermediate Scrutiny ............. 274 B. Intermediate Scrutiny for Prohibited Persons: Drug Users, Domestic Violence Offenders, Illegal Aliens, and Common-Law Misdemeanants ................................................................................ 278 C. Fifth Circuit: Intermediate Scrutiny for 18–20-Year-Olds ............. 281 D. Third Circuit: Obliterated Serial Numbers ..................................... 283 E. D.C. Circuit: Intermediate Scrutiny for Registration, Semi- Autos, and Magazines ..................................................................... 284 F. Second Circuit: Only “Substantial” Burdens Get Heightened Scrutiny ........................................................................................... 288 G. Ninth Circuit: Intermediate Scrutiny for Storage Mandates, Ammunition Sales Restrictions, and Magazine Bans ...................... 297 IX. HEIGHTENED SCRUTINY APPLIED ......................................................... 301 A. The Rules of Second Amendment Heightened Scrutiny ................... 301 B. The Burden of Proof ........................................................................ 304 C. Why Domestic Violence Bans Pass Intermediate Scrutiny ............. 305 D. “Not Quite Strict Scrutiny” for a Firing Range Ban ...................... 306 E. Something More Exacting Than Intermediate Scrutiny for Ban on New Gun Retailers ..................................................................... 308 SAINT LOUIS UNIVERSITY SCHOOL OF LAW 2017] THE FEDERAL CIRCUITS’ SECOND AMENDMENT DOCTRINES 195 F. Categorical Scrutiny for a Near-Prohibition on Bearing Arms ...... 308 G. Substantially Less Burdensome Alternatives ................................... 309 1. Cases Where Alternatives Were Found ..................................... 310 2. Cases Where Alternatives Were Not Found .............................. 312 CONCLUSION ................................................................................................... 313 APPENDIX: SECOND AMENDMENT CASES ....................................................... 315 Supreme Court ..................................................................................... 315 First Circuit .......................................................................................... 315 Second Circuit ...................................................................................... 315 Third Circuit ......................................................................................... 315 Fourth Circuit ....................................................................................... 316 Fifth Circuit .......................................................................................... 317 Sixth Circuit ......................................................................................... 317 Seventh Circuit ..................................................................................... 318 Eighth Circuit ....................................................................................... 318 Ninth Circuit ......................................................................................... 319 Tenth Circuit ........................................................................................ 320 Eleventh Circuit ................................................................................... 320 D.C. Circuit .......................................................................................... 321 SAINT LOUIS UNIVERSITY SCHOOL OF LAW 196 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 61:193 This Article describes the process for deciding Second Amendment cases, as set forth by the Circuits of the United States Courts of Appeals. The focus of the Article is how the circuit courts analyze Second Amendment cases. In the eight years since the Supreme Court decided District of Columbia v. Heller, the circuit courts have collectively worked out a Second Amendment methodology. Although there are differences among the circuits, and sometimes among panels within the same circuit, the methodology described below has become standard, albeit not universal. We have examined every post-Heller circuit case, including the unpublished ones. The cases are listed in the Appendix by circuit. We occasionally cite state court and federal district court cases that are especially illuminating. Part I summarizes the key legal rules from Heller. Part II does the same for McDonald v. Chicago, which
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