Cody J. Wisniewski, attorney and director of MSLF’s Center to Keep and Bear Arms, writes at Legal Insurrection:
In 2008, when the Supreme Court decided the landmark case of D.C. v. Heller, it set forth a new standard for reviewing Second Amendment cases based on the original public meaning of the Constitution—the text, history, and tradition test. The Court applied this same test in McDonald v. Chicago two years later.
And yet, since 2010, nearly every circuit court in the nation has failed to appropriately apply that test. Instead, circuits opt for a two-step approach that asks the Court to determine whether the challenged law implicates a “core” Second Amendment-protected right and then, if it does, to balance that right against the state or city’s “interests” (an approach specifically disclaimed by the Supreme Court in Heller).
Firmly establishing the standard by which Second Amendment challenges are decided will affect every Second Amendment case in the nation. And if the Court reiterates its text, history, and tradition test, it will do so for the better.
