Catholic University Law Review


Mark W. Smith


In the years since deciding District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Supreme Court has largely abandoned the role of protecting American gun owners despite the text, history, and tradition of the Second Amendment’s right to keep and bear arms. The Supreme Court has failed to use the jurisprudential tools at its disposal to ensure that the fundamental right to arms is protected as robustly as other enumerated constitutional rights. This failure is an acute one. And it is unjustifiable across a wide variety of jurisprudential methodologies, from originalism to the non-originalist approaches that were dominant during the era of the Warren and Burger Courts. The Supreme Court must do more to protect this right.

There are two important lines of American jurisprudence that, while historically influential, are not receiving their due in contemporary debates about the scope and enforcement of the Second Amendment. The first line of precedent stems from Footnote Four of the Supreme Court’s 1938 decision in United States v. Carolene Products Co. The second line of authority, also outlined in Footnote Four, arises from the Supreme Court’s traditional role of enforcing nationally accepted norms against outlier local majorities that are oppressing distinct and insular minorities. Today, certain outlier jurisdictions dominated by large urban majorities are depriving gun owners, who are a distinct and disfavored minority in many of those jurisdictions, of Second Amendment rights that are fully recognized in the vast majority of states and localities.

This article discusses both lines of precedential authority. Today’s Supreme Court can and should deploy these two principles to vindicate Second Amendment rights from continued attacks and to roll back outlier laws enacted by only a few jurisdictions that intentionally choose to ignore the U.S. Constitution as written and refuse to be bound by Supreme Court precedent.