Kevin Schascheck II (Independent; Tulane University School of Law) has posted Second Amendment Exceptions on SSRN. Here is the abstract:
The Second Amendment guarantees the individual right to keep and bear firearms. But that right has never been absolute. In Heller, the Supreme Court was careful to recognize certain exceptions to the right, which it labelled “presumptively lawful” categories of firearm regulations. Fourteen years later, the Court appeared to change course in Bruen by adopting a strict historical test for challenges to firearm regulations, potentially calling the future of Heller’s exceptions into question. But this Article argues that the categories remain viable and should be interpreted as consistent with, rather than in opposition to, Bruen’s historical methodology.
This Article argues that Heller’s exceptions should play an important role in post-Bruen Second Amendment litigation. Specifically, when a modern firearm regulation falls within one of Heller’s exceptions, the court should hold that the law at issue has a sufficient historical pedigree. However, not all regulations will fall within Heller’s presumptively lawful exceptions. For regulations that do not, courts must continue to engage with Bruen’s historical test. Where courts apply Bruen to locate new Second Amendment exceptions rooted in historical principles, laws falling under those principle-based exceptions should be treated the same way as the Heller exceptions. By adjudicating Second Amendment claims with Heller’s categorical framework in mind, courts may promote workability and reduce judicial discretion when applying Bruen’s methodology.