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SECOND AMENDMENT LITIGATION FOLLOWING DISTRICT OF COLUMBIA V HELLER IMPLEMENTING A COMBINATION CATEGORICAL REGULATION UNDUE BURDEN TEST FOR THE INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS FOR SELF DEFENSE by Stephen MacGuidwin Submitted in partial fulfillment of the requirements of the King Scholar Program Michigan State University College of Law under the direction of Professor Michael Anthony Lawrence Spring 2008 Second Amendment Litigation Following District of Columbia v Heller Implementing a Combination Categorical Regulation Undue Burden Test for the Individual Right to Keep and Bear Arms for Self defense Stephen F MacGuidwin1 I Introduction 2 II The Threshold Question Who Holds the Rights Conferred By the Second Amendment 4 a The Collective Rights Model 4 b The Individual Rights Model 6 c The Limited Individual Rights or Sophisticated Collective Rights Model 8 III The Follow up Question What Standard of Review Applies to the Alleged Infringement of Second Amendment Rights 9 a Strict Scrutiny 10 b Undue Burden 11 c Reasonable Regulation Rational Basis 13 d Categorical Regulation 14 IV District of Columbia v Heller 15 V In deciding District of Columbia v Heller the U S Supreme Court Should Recognize that the Second Amendment Protects an Individual Right and the Court Should Adopt an Combined Undue Burden Categorical Rules Standard of Review for Second Amendment Challenges 18 a The Individual Right Model is the Most Consistent with the Text and History of the Amendment and Supreme Court Precedent 19 b Categorical Regulations with Default Undue Burden Scrutiny is the Most Consistent with Supreme Court Precedent Constitutional Jurisprudence and the Relevant Interests Involved 21 VI Impact of an Individual Rights Second Amendment Categorical Regulations Undue Burden Framework on Existing Firearm s Legislation 23 a Conceal and Carry Permits 23 b Storage and Safety Requirements 24 c Mandatory Waiting Periods 26 d Weapon style and Accessory Restrictions 27 VII Conclusion



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