Most appellate and district courts that have explicitly adopted a level of scrutiny, including Third, Fourth, Tenth, and D.C. Circuit panels, have applied intermediate scrutiny to Second Amendment challenges. lvi Courts have arrived at intermediate scrutiny using differing approaches, but the clear trend suggests that laws that do not prevent a law-abiding, responsible citizen from possessing an operable handgun in the home for self-defense should face, and survive, an intermediate scrutiny review.
At the same time, a few courts have reviewed Second Amendment challenges under strict scrutiny. lvii Additionally, a Seventh Circuit decision held that the level of applicable scrutiny should be determined by “how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right.” lviii
Several courts have held that heightened scrutiny only applies where the challenged law burdens conduct protected by the Second Amendment. Most recently, a Second Circuit decision did not identify which level of scrutiny ought to apply to Second Amendment challenges, but did hold that heightened scrutiny is only warranted if the challenged law substantially burdens the Second Amendment. lix A Ninth Circuit decision also adopted a substantial burden framework for reviewing Second Amendment challenges; while that decision was subsequently vacated en banc, at least one lower court has found that it remains persuasive authority. lx Additionally, a New York district court that rejected a Second Amendment challenge to the state’s discretionary concealed carrying licensing scheme determined that the law did not burden the Second Amendment because it did not “substantially overlap with the core Second Amendment right articulated in Heller – namely the right to use arms for the purpose of self-defense in the home.” lxi
While intermediate scrutiny is most commonly used in Second Amendment cases, an Illinois appellate court recently applied rational basis review to uphold a state law prohibiting the carrying of guns in public.lxii The court reasoned that when the U.S. Supreme Court said in Heller and McDonald that rational basis review was inappropriate for Second Amendment challenges, it was referring only to challenges to the “core” Second Amendment right of a law-abiding citizen to possess a handgun in the home for self-defense. Similarly,
a federal district court expressed hesitation about applying intermediate scrutiny in evaluating a Second Amendment challenge, stating that “intermediate scrutiny seems excessive.”lxiii The court explained, “To place gun rights on the same high protected level as speech rights seems an odd view of American democratic values.” Finally, a Wisconsin appellate court recently applied a reasonableness test to uphold the constitutionality of Wisconsin’s now repealed law prohibiting concealed carry.lxiv
In almost every case, however, regardless of the test or level of scrutiny that has been applied, the Second Amendment challenge has been rejected and the statute at issue has been upheld. Still, the scrutiny issue remains a central component of much ongoing Second Amendment litigation.
http://smartgunlaws.org/wp-content/uploads/2012/07/Post-Heller-Summary-9.1.12.pdf