Gun Safety in the Age of Kavanaugh

This Essay takes stock of the different approaches adopted and advocated for in evaluating constitutional challenges in Second Amendment opinions throughout the country. The author’s hope is that doing so will help highlight the contours for debate when the Supreme Court does finally start to define some of the limits purported to exist by Justice Scalia. Part I analyzes the paths explicitly rejected by Heller I by reviewing the limits considered allowable by Justice Scalia. Part II considers the ongoing debate between the courts on the application of “strict” or “intermediate” scrutiny for Second Amendment challenges. Part III examines then-Judge Kavanaugh’s Heller II opinion in comparison to the other options, and finally Part IV discusses the implications of Kavanaugh’s novel approach, particularly in light of the recent change in the Supreme Court’s Fourth Amendment jurisprudence and the Court’s grant of certiorari in New York State Rifle & Pistol Ass’n v. City of New York