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Hastings Law Journal

Authors

Calvin Massey

Abstract

In District of Columbia v. Heller, the Supreme Court determined that the Second Amendment protects an individual right to bear arms for self-defense. That right is a constitutional operative rule: We know it exists but we have little idea of its boundaries. Constitutional decision rules, whether they be tiered scrutiny, multi-factor analytical tests, categorical rules, or something else, function to enable courts, lawyers, and citizens to understand the dimensions of any given right. Because the Court has announced a new constitutional operative rule without providing much guidance concerning the applicable constitutional decision rules, this Essay is an effort to identify the major areas in which such decision rules are apt to be crafted. Among the questions raised are the following: To what kind of weapons does the right extend? Who holds the right? Are there situational or geographic limits to the right? How will burdens upon the right be assessed? What level of judicial scrutiny will apply to such burdens?

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