85 Geo. Wash. L. Rev. 284
Since the Supreme Court decided District of Columbia v. Heller in 2008, federal courts have disagreed about (1) the proper standard of review for Second Amendment questions, and (2) whether the Amendment confers a constitutional right to concealed carry a firearm in public. The same “common use” test the Supreme Court used in Heller to define the scope of the term “arms” in the Second Amendment should be applied to the term “bear” in conferring a constitutional right to concealed carry a handgun in public. The new originalist distinction between constitutional interpretation and construction reveals the methodology used by the majority in Heller to create the common use test. Extended to concealed carry, the common use test places this right within the categorical scope of the Second Amendment’s protection. In adopt- ing Heller’s categorical standard of review, courts should invalidate state regulations that ban or functionally prohibit rights falling within the scope of the Second Amendment. Applying the common use test to the question of concealed carry appropriately mirrors Heller’s method of constitutional construction as opposed to the competing “alternative outlet” approach.
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