Defying the Supreme Court: Federal Courts and the Nullification of the Second Amendment
By Joyce Lee Malcolm
Publication Date
2018
Abstract
This Article argues that, in the decade following District of Columbia v. Heller and McDonald v. City of Chicago, many lower federal courts have effectively nullified the Supreme Court’s recognition of the Second Amendment as an individual, fundamental right. Through close examination of prominent dissents from denials of certiorari and recent appellate decisions, the Article demonstrates how courts have disregarded controlling precedent, applied diluted forms of heightened scrutiny, and substituted policy preferences for constitutional command. The Article contends that this judicial resistance threatens not only the Second Amendment but the integrity of Supreme Court authority and constitutional rights more broadly. It concludes that the Supreme Court must intervene to clarify the governing standard of review and enforce judicial adherence to its Second Amendment jurisprudence.
Recommended Citation
Joyce Lee Malcolm, Defying the Supreme Court: Federal Courts and the Nullification of the Second Amendment, 13 Charleston L. Rev. 295 (2018).
