In Keeping With Heller

Authors

Kevin Schascheck, Tulane University School of Law

First Page

617

Document Type

Symposium

Abstract

Evaluating the constitutionality of modern firearm regulations under the Second Amendment requires recourse to historical evidence under Bruen v. New York State Rifle and Pistol Association. Generally, the government bears the burden to demonstrate that modern firearm regulations are consistent with the nation’s historical traditions. But the Supreme Court’s earlier opinion in District of Columbia v. Heller stated that certain categories of firearm restrictions are longstanding and thus presumptively lawful. And yet, litigants are inviting courts to reject this presumption, arguing that presumptively lawful regulations should be subject to the same historical test as presumptively unlawful regulations.

Courts should reject the invitation to weaken or narrow Heller’s presumptively lawful exceptions. Ignoring the presumptively lawful categories of firearm regulations outlined in Heller undermines a key component of the Second Amendment framework. Abandoning that doctrine could undo the public safety efforts of legislatures and litigants working to prevent gun violence. As such, Heller’s admonishment that certain categories of firearm regulations would receive a presumption of lawfulness should be embraced—not left in the doctrinal dustbin.

Recommended Citation

Kevin Schascheck, In Keeping With Heller, 73 Buff. L. Rev. 617 (2025).
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol73/iss3/3