Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda


How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don’t make sense here, just as they don’t fully describe the rules applied to most other constitutional rights.

Rather, courts should separately consider four different categories of justifications for restricting rights: (1) Scope justifications, which derive from constitutional text, original meaning, tradition, or background principles; (2) burden justifications, which rest on the claim that a particular law doesn’t impose a substantial burden on the right, and thus doesn’t unconstitutionally infringe it; (3) danger reduction justifications, which rest on the claim that some particular exercise of the right is so unusually dangerous that it might justify restricting the right; and (4) government as proprietor justifications, which rest on the government’s special role as property owner, employer, or subsidizer.

I suggest where the constitutional thresholds for determining the adequacy of these justifications might be set, and I use this framework to analyze a wide range of restrictions: “what” restrictions (such as bans on machine guns, so-called “assault weapons,” or unpersonalized handguns), “who” restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), “where” restrictions (such as bans on carrying in public, in places that serve alcohol, or in parks, or bans on possessing in public housing projects), “how” restrictions (such as storage regulations), “when” restrictions (such as waiting periods), “who knows” regulations (such as licensing or registration requirements), and taxes and other expenses.

About the Author

Gary T. Schwartz Professor of Law, UCLA School of Law

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