Document Type

Student Paper

Publication Date

2025

Comments

With the decision in District of Columbia v. Heller, the Supreme Court exclaimed that the Second Amendment no longer merely protected right to bear arms in the service of the militia. Instead, the Court stated that the Second Amendment, “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Following Heller, the Court took the logical step in McDonald v. City of Chicago to fully incorporate the Second Amendment to apply against the states. Despite these seismic changes in Second Amendment jurisprudence, states have continued to regulate firearms using interest balancing tests commonly seen in other areas of Constitutional law. States balanced, on one hand, a person’s right to bear arms against the government’s interest in ensuring public safety. Finally with N.Y. State Rifle & Pistol Ass'n v. Bruen and United States v. Rahimi, the court declared, “the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Over the course of less than two decades, the Second Amendment went from one of the least litigated areas of Constitutional law to one of the most robust. While courts at the local, state and federal level have been grappling with this new “history and tradition test,” scholars have theorized about the implications these rulings have on other areas of Constitutional law, specifically, the Fourth Amendment. This paper builds on that scholarship by detailing how a potential litigant could exploit the contradictions in Fourth Amendment and Second Amendment jurisprudence to radically challenge current police practices.

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