This article addresses an important issue not decided by the Court in Heller, i.e., the size or scope of the Second Amendment right identified in that case. Heller is a victory for those opposed to gun control legislation, but it could turn out to be a limited victory, depending on the standard of review adopted to decide Second Amendment challenges to gun control laws. I argue the Court should adopt a heightened rational basis standard that rewards an enlightened legislative process and gives deference to the laws that result from this process. Gun control laws serve an important governmental function, promoting safety, and there should be no presumption of either validity or invalidity. Rather, such laws should be judged on their individual merit, taking into account the extent of the problem in the jurisdiction and the match or fit between the problem and the method selected to address the problem. Legislative bodies that make a good faith effort to achieve their safety goals without unduly burdening the self-defense-related right identified in Heller are entitled to deference.
Ivan E. Bodensteiner, Scope of the Second Amendment Right--Post-Heller Standard of Review, 41 U. Tol. L. Rev. 43 (2009).