Title: The Tsunami of Legal Uncertainty: What's a Court to Do Post-McDonald?
Abstract: The Article’s title is taken from Justice John Paul Stevens’ dissenting opinion in McDonald v. Chicago, where he predicted that the decision would unleash a “tsunami of legal uncertainty, and thus litigation” because the Court failed to provide lower state and federal courts the appropriate standard of review to decide the constitutionality of Second Amendment cases. More than 190 judicial decisions have cited McDonald in the fourteen months since it was decided, with many more still being litigated. Without guidance in McDonald or its predecessor Heller v. District of Columbia, the lower courts have been forced to find their own way and these courts have used virtually every recognized standard of review to evaluate Second Amendment challenges. Unlike other constitutional provisions, the utilization of the Second Amendment right may result in the immediate harm to an individual’s life. As a result, this article proposes that Second Amendment cases should be reviewed under the test utilized in abortion cases: The undue burden test.
Publication Year: 2011
Publication Date: 2011-11-05
Language: en
Type: article
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