Citation

Bandy B. Houst. Law Rev. 2022; 60(1): 198-232.

Copyright

(Copyright © 2022, College of Law of the University of Houston)

DOI

unavailable

PMID

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Abstract

The scope of the Second Amendment is one of the most contested constitutional issues of the twenty-first century. While the Supreme Court clarified that the Second Amendment protects an individual right to possess a firearm in common use for lawful purposes in the landmark case District of Columbia v. Heller (Heller I), the debates over the constitutionality of assault weapon and large-capacity magazine bans continue. Five circuit courts have already heard challenges to these kinds of laws and found them constitutional. However, recent cases at the Supreme Court and the Ninth Circuit may reverse the trend. In 2022, the Supreme Court decided New York State Rifle & Pistol Ass'n v. Bruen and rejected interest balancing in Second Amendment cases. In 2021, the Ninth Circuit initially found California's large-capacity magazine ban unconstitutional. The California litigation is ongoing and has the potential to completely reshape the legal landscape as the first post-Bruen Second Amendment case. This Note examines both federal and California caselaw on assault weapon and large-capacity magazine bans and proposes a new test that incorporates Heller's "in common use" standard and Bruen's "history and tradition" standard into a single comprehensive test...

...The Second Amendment is an acknowledgment of the fundamental right of an American citizen to keep and bear arms. America's relationship with guns is unique, and it reflects the incredible role guns have played in American culture dating all the way back to the Revolutionary War. Guns are inherently dangerous and can be used as tools by evil people to inflict inconceivable amounts of death and destruction. It is a natural response to want to do something to stop it. However, Americans should not lose sight of the wisdom our Constitution provides us. The Constitution safeguards the essential liberties that make us who we are, including the right to keep and bear arms. Every right guaranteed by the Constitution is sacred, and none should be allowed to perish simply because it seems like a good idea. Justice Scalia put it best when he said "[t]he very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon." The right to keep and bear arms is necessary to the security of a free state: it is really worth insisting upon.

Language: en