In Footnote 4 of United States v. Carolene Products, frequently referred to as the most famous footnote in constitutional law, the Supreme Court advanced the idea that a narrower standard of review, one that calls for a "more searching judicial inquiry," should operate against the presumption of constitutionality for legislation that is aimed at a discrete and insular minority, or legislation that infringes on a fundamental right. In the landmark decision of McDonald v. City of Chicago, the Supreme Court held that the Second Amendment right to keep and bear arms for self-defense is a fundamental right that is fully incorporated and applicable to the States under the Due Process Clause of the Fourteenth Amendment. Prior to McDonald, the Supreme Court invalidated a law banning the possession of handguns in District of Columbia v. Heller. In both cases, the Supreme Court declined to apply a specific standard of judicial scrutiny to the challenged laws. Instead, the Court left the difficult task of determining the applicable level of scrutiny to the lower federal courts. Numerous courts have since declined to engage in the meaningful judicial review required to determine the applicable level of scrutiny. Recently, when presented with the opportunity to address the "levels of scrutiny" quandary left unanswered by Heller and McDonald, the Seventh Circuit declined to engage in meaningful judicial review, and instead determined that the law at issue meets a heightened standard of scrutiny. This Comment critiques the Seventh Circuit's decision and asserts that the Seventh Circuit erred by failing to examine the "levels of scrutiny" quagmire in United States v. Skoien.
Kyle J. Pozan,
Scrutinizing the Seventh Circuit: How the Court Failed to Address the "Levels of Scrutiny" Quagmire in United States v. Skoien,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol6/iss1/11