University of Southern California

Packing Heat: Judicial Review of Concealed Carry Laws Under the Second Amendment

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Note by Kevin Behne
From Volume 89, Number 6 (September, 2016)

The regulation of firearms is one of the most volatile policy issues in the United States. Virtually every effort to regulate—or deregulate—the accessibility or usage of firearms raises dueling concerns of public safety and individual rights. Federal courts are no exception to the controversy, offering a microcosm of the broader public debate. The Supreme Court’s sharply divided decisions in District of Columbia v. Heller and McDonald v. City of Chicago are illustrative of the point; while Heller established the Second Amendment right to keep and bear arms in the individual context, and McDonald extended the right as fundamental and binding on the states, the decisions did little to fix the scope and magnitude of the newly created right, leaving it open to spirited debate. In the wake of the two decisions, lower courts have been left to grapple with how far and with what rigor to scrutinize state and local laws that may burden the right to keep and bear arms.

People may kill and injure people, but guns appear to be a weapon of choice. In the United States alone, there are over 32,000 firearm-related deaths annually and an additional 78,000 persons are injured as a result of interpersonal firearm violence. While a significant portion of the casualties are attributable to suicides, accidents, law enforcement, or self-defense, an appreciable portion are the product of criminal activity. Although exact numbers are difficult to ascertain, the Department of Justice estimates that each year, approximately 470,000 persons become victims of a crime committed with a firearm. But perhaps the most visible manifestations of gun violence are “mass shooting” incidents, drawing substantial media coverage and public concern. These variables, among others, animate concerns of public safety, giving rise to policy arguments for more stringent regulations of firearms.

On the other hand, the concept of a constitutionally enshrined right to keep and bear arms is sacrosanct for others. Firearms are deeply engrained in the American ethos, prevalent in history and popular culture. It is estimated that Americans possess anywhere from 270 million to 310 million firearms. While many of the firearms have a common owner, the ownership base is broad—polling data reveals that more than one-third of Americans say they, or someone in their household unit, owns a gun. Groups advocating Second Amendment rights, most notably the National Rifle Association (“NRA”), enjoy broad political influence, exerting substantial pressure against increased restrictions on the availability and permissible uses of firearms. For supporters, the right to keep and bear arms creates an “inalienable natural right to self-defense” that forms an “important part of the constitutional fabric.”

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