T he Second Amendment states that "[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Before the Supreme Court's 2008 opinion in District of Columbia v. Heller, the right generally had been understood by federal courts to be intertwined with military or militia use. This passage spawned a longstanding debate over whether the Second Amendment provides an individual right to keep and bear arms versus a collective right belonging to the states to maintain militias, with the vast majority of the courts embracing the collective right theory. Indeed, the Court has said little on the matter, most notably by holding that the Second Amendment right is incorporated through the Fourteenth Amendment to apply to the states in McDonald v. City of Chicago . During the October 2019 term, however, the Supreme Court will review a Second Amendment challenge to a New York City firearm licensing provision in New York State Rifle & Pistol Association, Inc. v. City of New York , giving the Court another opportunity to elaborate on the scope of the individual right to keep and bear arms. Accordingly, this report evaluates how the lower federal courts have interpreted Heller and the Second Amendment through challenges to various federal, state, and local firearm laws. Heller did not define the full scope of the right protected by the Second Amendment, but the main take away may be summed up as follows: The Second Amendment protects the right of law-abiding citizens to possess weapons for lawful purposes, notably, self-defense in the home. If it does not, the inquiry ends, as the law does not implicate the Second Amendment. For less severe burdens, the court requires the government to make a "strong showing" that a firearm regulation bears a "substantial relation" to an important governmental objective—a standard that resembles the intermediate scrutiny standard of review. Since Heller and McDonald, the lower courts have been attempting to apply Heller in various Second Amendment challenges to federal, state, and local firearm laws. Aliens

Another provision of the Gun Control Act, 18 U.S.C. Taking a different approach, the Seventh Circuit in Friedman v. City of Highland Park evaluated the constitutionality of a Chicago suburb's assault weapon ban without applying a particular level of scrutiny to assess the ban's constitutionality, but rather, by asking "whether [the] regulation bans weapons that were common at the time of ratification or those that have 'some reasonable relationship to the preservation of a well regulation militia,' and whether law-abiding citizens retain adequate means of self-defense." In doing so, the court relied on the passage in Heller that carrying firearms in sensitive places like government buildings are presumptively lawful. Notably, to answer whether NYC's premise licensing scheme comports with the Second Amendment, the Supreme Court likely will have to determine how Second Amendment claims should be evaluated. As this report highlights, the lower courts have generally adopted a two-part framework for evaluating Second Amendment claims. Almost all federal courts reviewing Second Amendment challenges post- Heller have adopted a two-step approach to evaluating Second Amendment challenges. First, courts ask whether the regulated person, firearm, or place comes within the scope of the Second Amendment's protections. If, on the other hand, the challenged law does implicate the Second Amendment, courts must next decide the appropriate level of scrutiny—rational basis, intermediate, or strict scrutiny—to employ in determining whether the law passes constitutional muster. In deciding which level to choose, courts generally ask whether the challenged law burdens core Second Amendment conduct, like the ability to use a firearm for self-defense in the home. If a law substantially burdens core Second Amendment activity, courts typically will apply strict scrutiny. Otherwise, courts will apply intermediate scrutiny. All told, most firearm laws have been reviewed under intermediate scrutiny, where the courts require a reasonable fit between the challenged law and a substantial or important governmental interest asserted as the basis for the law.
The Second Amendment states that "[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Before the Supreme Court's 2008 opinion in District of Columbia v. Heller, the Second Amendment had received little Supreme Court attention and had been largely interpreted, at least by the lower federal courts, to be intertwined with military or militia use. Still, there had been ample debate in the lower federal courts and political discussion over whether the Second Amendment provides an individual right to keep and bear arms, versus a collective right belonging to the states to maintain militias. Pre-Heller, the vast majority of lower federal courts had embraced the collective right theory.
In Heller, though, the Supreme Court adopted the individual right theory, holding that the Second Amendment protects an individual right for law-abiding citizens to keep and bear arms for lawful purposes including, most notably, self-defense in the home. Two years later in McDonald v. City of Chicago, the Court held that the Second Amendment applies to the states via selective incorporation through the Fourteenth Amendment.
After Heller and McDonald, numerous challenges were brought on Second Amendment grounds to various federal, state, and local firearm laws and regulations. Because Heller neither purported to define the full scope of the Second Amendment, nor suggested a standard of review for evaluating Second Amendment claims, the lower federal courts have been tasked with doing so in the Second Amendment challenges brought before them. These challenges include allegations that provisions of the Gun Control Act of 1968, as amended, as well as various state and local firearm laws (e.g., "assault weapon" bans, concealed carry regulations, firearm licensing schemes) are unconstitutional. The analyses in these cases may provide useful guideposts for Congress should it seek to enact further firearm regulations.
Generally, the courts have adopted a two-step framework for evaluating Second Amendment challenges. First, courts ask whether the regulated person, firearm, or place comes within the scope of the Second Amendment's protections. If not, the law does not implicate the Second Amendment. But if so, the court next employs the appropriate level of judicial scrutiny—rational basis, intermediate, or strict scrutiny—to assess whether the law passes constitutional muster. In deciding what level of scrutiny is warranted, courts generally ask whether the challenged law burdens core Second Amendment conduct, like the ability to use a firearm for self-defense in the home. If a law substantially burdens core Second Amendment activity, courts typically will apply strict scrutiny. Otherwise, courts generally will apply intermediate scrutiny. Most challenged laws have been reviewed for intermediate scrutiny, where a court asks whether a law is substantially related to an important governmental interest. And typically, the viability of a firearm restriction will depend on what evidence the government puts forth to justify the law. Yet sometimes courts take a different or modified approach from that described above and ask whether a challenged regulation falls within a category deemed "presumptively lawful" by Heller. If the law falls within such a category, a court does not need to apply a particular level of scrutiny in reviewing the restriction because the law does not facially violate the Second Amendment.
In early 2019, the Supreme Court granted certiorari in New York State Rifle & Pistol Association, Inc. v. City of New York. The Court is set to review a portion of New York City's firearm licensing scheme that the U.S. Court of Appeals for the Second Circuit upheld as valid. In doing so, the Court may clarify the scope of the right protected in the Second Amendment. Importantly, to make this substantive ruling, the Court likely will have to answer a question that it has eluded since Heller: Under what framework should Second Amendment challenges be evaluated?