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Are Firearms Fundamental? An Examination of Standard of Scrutiny in Firearm Litigation

Milan Narayan

Edited by Colin Crawford, Jia Lin, and Mackenzie Kang

Firearm regulations have risen to the forefront of policy discussions across state legislatures as firearm-related deaths continue to increase. Many states have passed laws restricting gun access, which are often subject to legal challenges for potentially infringing on the Second Amendment. In response, other states have attempted to designate the right to bear arms as a “fundamental right,” which provides heightened protections against encroachments on this right. The recent trend of states labeling the Second Amendment as a “fundamental right” ensures that courts must apply strict scrutiny when adjudicating challenges to firearm regulations. However, despite the rigorous nature of the strict scrutiny test, firearm regulations may not be as severely affected as previously believed, since these new amendments put more discretionary power in the hands of judges who tend to uphold challenged legislation. 

Cornell’s Legal Information Institute defines strict scrutiny as a form of judicial review used to assess the constitutionality of certain laws, ordinances, and policies [1]. Often, strict scrutiny is applied when a plaintiff sues the government on grounds of discrimination based on one of its policies. In these scenarios, the government bears the burden of proof of demonstrating a “compelling interest” that justifies the “narrowly tailored” policy. If it can, the law passes the strict scrutiny test; otherwise, the court deems the law unconstitutional. Strict scrutiny is the highest standard of review. The standard below strict scrutiny is called “intermediate scrutiny,” which is more lenient but still requires the government to establish proof that its law serves an “important objective” and is “substantially related” to achieving that objective [2]. The lowest level of scrutiny applied is the “rational basis test.” In the rational basis test, the plaintiff must prove that the government has no “legitimate interest” in the law and that there is no “reasonable link” between that interest and the law they are challenging. As rational basis shifts the burden of proof onto the plaintiff,  this test significantly differs from other standards of review.

An examination of landmark firearm court cases yields ambiguity from federal courts regarding the standard of review applied to gun policies. In 2008, the Supreme Court heard D.C. v. Heller, a case that challenged a Washington D.C. provision that restricted the licensing of handguns and required licensed firearms in the home to be unloaded and disassembled [3]. The Supreme Court ruled the provision unconstitutional in a 5-4 decision in the first case in decades that the court interpreted the text of the Second Amendment, resulting in a major win for gun rights activists [4]. Despite the significance of the case, the court declined to assign any specific standard of review to its adjudication of the provision, nor did it provide any guidance on how to interpret future challenges to firearm laws. The Supreme Court did, however, reject the application of the rational basis test to this specific case. Justice Stephen Breyer suggested an “interest-balancing test” for Heller, proposing that if governmental interest in the D.C. provision was substantial, then the court should simply defer to the legislature, tacitly upholding the policy. The majority rejected this standard as well, with Justice Scalia arguing that the Second Amendment itself was a product of interest-balancing by the people.[5] 

Given the ambiguity of Heller, courts have primarily adopted a two-tiered approach in evaluating challenges to gun policies [6]. The first tier determines whether or not the policy is deeply rooted in the country’s values. The second tier is an application of “means-end scrutiny,” which itself has three components. The first component, known formally as scrutiny of government issues or “end scrutiny,” evaluates if the government’s interest is “sufficiently substantial to satisfy the applicable level of scrutiny.” It essentially examines whether the problem the government seeks to tackle is of a magnitude that justifies a restrictive policy. The second component is the scrutiny of the effectiveness of means. The court must find that the means used to achieve the government’s goal are rational and effective, meaning this component evaluates the solution itself. The final component is “scrutiny of alternatives,” similar to scrutiny of the effectiveness of means but more specific [7]. A court must determine that the policy is necessary and narrowly tailored enough to address the problem the government is attempting to solve. It further holds that the policy passed must be the least restrictive alternative. For instance, assume Town A faces the recurring problem of convicted domestic abusers accessing firearms. If Town A passes a policy that ubiquitously bans firearm ownership, a court would strike it down because it fails the scrutiny of alternatives test. The town could specifically ban firearm ownership by convicted domestic abusers, which would be significantly less restrictive. 

The noteworthy case McDonald v. Chicago also elicited a victory for gun rights activists. After the Heller decision, Otis McDonald and others sued Chicago on grounds that its law restricting handguns, which was very similar to the D.C. law, was unconstitutional. McDonald argued that the Second Amendment should apply to the states, as well. The Court agreed, and it struck down Chicago’s provisions. More importantly, the Court stated that the Due Process clause in the Fourteenth Amendment “selectively incorporated” the Second Amendment rights as outlined in Heller, which were the rights for law-abiding and mentally able citizens to bear arms.[8] Consequently, states gained significantly more jurisdiction over the legality of their gun-restricting laws. Four states—Alabama, Missouri, Iowa, and Louisiana—have already made concerted efforts to limit the restriction of firearm usage by passing constitutional amendments that establish the right to bear arms as a fundamental right.[9] Such status represents more than just words; attempts to restrict or encroach on such rights through policies are met with strict scrutiny in courts.

A shift to courts adopting strict scrutiny when adjudicating Second Amendment challenges would represent a stark contrast from current trends. An analysis by Rostron characterizes the current two-tiered approach to evaluating firearm-restricting policies as a “lenient application of intermediate scrutiny.”[10] The lenience stems from how the equivocation of the Supreme Court in the Heller and McDonald cases caused lower courts to act deferentially. In fact, Eric Ruben and Joseph Blocher found that the government won a staggering 90% of all Second Amendment claims made in the eight years following Heller. In theory, legislative efforts to restrict firearm ownership or usage in those states would be ineffective; law professor Lawrence Rosenthal remarked that strict scrutiny would be the “death knell for gun control policies.”[11]

A closer look at the application of strict scrutiny in Second Amendment claims suggests that it may not inhibit the passage of firearm-restricting laws as much as anticipated. The NRA spearheaded a campaign to designate firearm rights as fundamental in state constitutions, in part because they believed that state judges had downgraded firearm rights to “second class status.”[12] Pettys argues that by amending their state constitutions to reference the right to bear arms, these states imply that there is a pre-existing right to bear arms—which is only explicitly articulated in the Constitution. In other words, “the” right to bear arms assumes inherence in the right; we say we have “the” right to live instead of “a” right to live because we assume all humans should live. “A” right to bear arms reads as the government creating and bestowing a new right, not natural to humanity, onto its people. In the Heller decision, Justice Scalia pointed out that the right to bear arms is not necessarily natural. In writing for the majority, Scalia asserts that nothing in their opinion should be taken to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[13] Scalia also notes that his list was not exhaustive, meaning the Court expressed some ambivalence about the constitutionality of some laws that reasonably fall under the categories mentioned. Ultimately, the Supreme Court has not clearly articulated exactly whom the fundamental right to bear arms applies to, when it applies, or where it applies. There are conditions in which restrictive gun laws can be constitutional, but the Heller decision leaves this determination to the judge’s discretion. Therein lies the central paradox with the NRA’s campaign: their efforts to arrest judicial flexibility through strict scrutiny may inadvertently place more power into the hands of the same judges who have allegedly dismissed the value of gun rights. 

The futility of strict scrutiny amendments has already played out in the states in which they have been ratified. Given the ambiguity resulting from the Heller decision in defining the scope, courts in those states are more likely to adjudicate gun rights cases in the same manner as before strict scrutiny amendments. Law professor Adam Winkler found that since World War II, every state court has used a deferential “reasonable regulation standard” in gun rights cases, which has led to the upholding of nearly every challenged gun restriction law.[14] Recent cases in Missouri and Louisiana—two states with strict scrutiny amendments—uphold Winkler’s findings. Missouri’s Supreme Court wrote in State v. Clay that challenged legislation should be upheld if it is “possible… by any reasonable construction of the Constitution.”[15]. Similarly, Louisiana’s Supreme Court wrote in State v. Webb that a petitioner who believes a law or statute is unconstitutional must “demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question.” [16] Despite the fact that both states had strict scrutiny amendments in place at the time, the opinions of their Supreme Courts are highly deferential given that they are supposed to litigate with strict scrutiny. 

As more states ratify amendments that enshrine gun rights as fundamental, concerns from gun violence prevention activists have grown regarding the obstructions to the passage of progressive or comprehensive gun restrictions. Nevertheless, the states that have adopted these amendments haven't been as effective in managing firearms regulations as the NRA anticipated. Judges have new increased flexibility to determine the scope of fundamental rights, and given that states tend to defer to the legislature on gun policy, it appears unlikely that strict scrutiny amendments will significantly increase the rate at which challenged firearm laws are ruled unconstitutional.


[1]“Strict Scrutiny.” LII / Legal Information Institute,

[2]Snider, Brett. “Challenging Laws: 3 Levels of Scrutiny Explained.” FindLaw Legal Blog, 12 May 2020,

[3]"District of Columbia v. Heller." Oyez, Accessed 31 Oct. 2023.

[4]Fredrickson, Caroline. “District of Columbia V. Heller | Constitution Center.” National Constitution Center –,,on%20handguns%20in%20the%20home. Accessed 23 Oct. 2023.

[5]Rose, Veronica. “SUMMARY OF D.C. V. HELLER.” Connecticut General Assembly, 17 Oct. 2008,

[6]Scrofano, Joseph. “A Surprising Take on the Supreme Court’s Bruen Decision - Scrofano Law Blog.” Scrofano Law Blog, 9 Aug. 2022,,public%20for%20self%20defense%20purposes.

[7]Galloway, Russell. “Means-End Scrutiny in American Constitutional Law .” Loyola of Los Angeles Law Review, 1 Jan. 1998,

[8]"McDonald v. Chicago." Oyez, Accessed 25 Oct. 2023.

[9]Willinger, Andrew. “Does Bruen Herald the End of Constitutional Strict-Scrutiny Amendments? | Duke Center for Firearms Law.” Duke Center for Firearms Law, 26 Aug. 2022,

[10]Rostron, Allen. “Justice Breyer’s Triumph in the Third Battle Over the Second Amendment.” George Washington Law Review, Apr. 2012,

[11]Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. U. L. Rev. 1187 (2015).

[12]Pettys, Todd. “The N.R.A.’s Strict-Scrutiny Amendments.” Iowa Law Review - the University of Iowa, 28 Mar. 2023,,stringent%20demands%20of%20strict%20scrutiny.

[13]Pettys, Todd. “The N.R.A.’s Strict-Scrutiny Amendments.” Iowa Law Review - the University of Iowa, 28 Mar. 2023,,stringent%20demands%20of%20strict%20scrutiny.

[14]Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007).

[15]Pettys, Todd. “The N.R.A.’s Strict-Scrutiny Amendments.” Iowa Law Review - the University of Iowa, 28 Mar. 2023,,stringent%20demands%20of%20strict%20scrutiny.

[16]Dierker, Robert. “SUPREME COURT OF MISSOURI En Banc STATE OF MISSOURI, ) ) Appellant, ) ) Vs. ) No. SC94954 ) PIERRE CLAY.” Supreme Court of Missouri, 9 Feb. 2016,

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