This Article considers the timely and important question of Congress’s power to enforce the Second Amendment. Such legislation would test the Court’s current enforcement power doctrine, which ostensibly acknowledges a congressional role in vindicating constitutional rights while insisting on judicial supremacy in stating constitutional meaning. Second Amendment doctrine is complex and, importantly, methodologically varied. That complexity and variety would require the Court to perform a more nuanced, granular approach to the enforcement power than it has thus far in the modern era.
Part II quickly recaps the Court’s Enforcement Clause jurisprudence. It concludes that its most recent enforcement power cases have left the doctrine adrift. Part III provides a similarly quick recap of the Supreme Court’s and lower federal courts’ Second Amendment jurisprudence. It identifies at least five steps that courts have taken in analyzing Second Amendment issues, which reflect varying levels of core constitutional meaning. That variation matters for the constitutionality of particular instances of congressional gun rights enforcement.
Part IV examines, and finds wanting, the extant approaches to congruence and proportionality review as they might apply to Second Amendment enforcement legislation. Part V offers an alternative approach, in which review of gun rights enforcement legislation would account for the different constitutional status of each step of Second Amendment doctrine. Part VI applies this approach, and works through its difficulties, using a hypothetical enforcement statute granting Americans the right to carry firearms in their automobiles.
Part VII briefly and speculatively expands the scope of this proposed approach to legislation enforcing other substantive Fourteenth Amendment rights. The difficulties posed by Second Amendment enforcement legislation would likely reappear in legislation enforcing such rights. It urges the Court to adopt an approach of this sort in order to credibly implement both its insistence on judicial supremacy in stating constitutional meaning and its acknowledgement of Congress’s role in vindicating constitutional rights.