Since the landmark cases of District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, the Supreme Court has declined to hear any of the many current cases that present an opportunity to address the Second Amendment. As a result, the lower courts have largely eroded firearm rights in many regions of the United States. It is thus imperative that the Supreme Court grant certiorari to a Second Amendment-related case to clarify certain aspects of Heller, or the lower courts will continue to treat the Second Amendment as a disfavored right. Essentially, the lower courts have predominantly applied only intermediate scrutiny to the fundamental right. But applying that level of scrutiny makes it too easy to hold that a certain law passes constitutional muster.
The addition of Justices Neil Gorsuch and Brett Kavanaugh provide the opportunity to fortify the Second Amendment. This addition likely provides the Supreme Court the votes needed to grant certiorari and the analysis needed to mandate that heightened scrutiny applies to the Second Amendment. The Supreme Court could even adopt a new and simpler test to apply to Second Amendment-related cases. This Article argues that the Supreme Court has an excellent opportunity to decide to hear a Second Amendment-related case and considers how the Court must rule to effectively preserve the protections offered by the Second Amendment.
Shooting America Straight: Why the Time Is Now for the Supreme Court to Fortify Gun Rights in America Post-Heller,
Tex. A&M L. Rev.
Available at: https://scholarship.law.tamu.edu/lawreview/vol7/iss1/9