The Hidden Second Amendment Framework within District of Columbia v. Heller

The Second Amendment has always been shrouded in constitutional mystery. For most of our history, this mystery has centered on whether the Second Amendment protects an individual or collective right to keep and bear arms. The Supreme Court had not addressed the issue in any meaningful fashion, and lower courts continuously struggled with it, leading legal commentators to produce countless books, articles, and symposia on the topic. The Court resolved this central Second Amendment question in June 2008 when it decided District of Columbia v. Heller. In Heller, the Court squarely confronted the meaning of the Second Amendment and held that it protected an individual right to keep and bear a firearm for lawful purposes, such as self-defense in the home. Yet, in the same breath, the Court was careful to limit explicitly its ruling by holding that the individual right was not absolute. Although the Heller Court provided a non-exhaustive list of certain longstanding firearms regulations that did not run afoul of the Second Amendment,\u27 it left the issue of how to review Second Amendment claims for another day. Thus, in resolving the question of whether the Second Amendment protects an individual right, the Court created a new mystery: How should courts review claims under the Second Amendment