Court Adopts Two-Pronged Heller Analysis, Rejects Second Amendment Challenge to "Dangerous Weapon" Enhancement

In 2008, the Supreme Court in Heller held that the Second Amendment protects an individual's right to keep and bear arms without regard to Militia service. That right, however, is not unlimited. Post-Heller, lower courts have struggled to turn the text of the decision into a workable approach for resolving Second Amendment challenges. Today, in United States v. Greeno (10-6279), the Sixth Circuit adopted the two-pronged test utilized by the Third, Fourth, Seventh, and Tenth Circuits.

Under the first prong, the court asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right as it was understood at the relevant time of ratification (1791 for the Bill of Rights, 1868 for the Fourteenth Amendment). If the law does not, the inquiry ends and the challenge fails. If, however, the government cannot establish that the conduct falls outside of the scope of the right, then the court proceeds to the second prong of the test.

Under the second prong, the court applies the "appropriate" level of scrutiny to the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights. The definition of "appropriate" is not defined.

Mark Greeno was convicted of conspiracy to distribute methamphetamine and received the standard two-level enhancement under Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines for possession of a dangerous weapon. Greeno argued that the enhancement violated his post-Heller Second Amendment rights.

The Court announced its adoption of the two-pronged test and dismissed Greeno's challenge without reaching the second prong. The Court reasoned that, even in 1791, the Second Amendment only protected an individual's right to possess a weapon for lawful purposes. The Court did not reach the second prong and so did not weigh in on what level of scrutiny it might apply.

Take-aways from this case: (1) adoption of the two-pronged test; (2) under the first prong, the burden appears to be on the government to prove that the activity is outside of the scope of the Second Amendment as it was historically understood; (3) Second Amendment is unlikely to be of help to criminal defendants.