미국 수정헌법 제2조와 총기 소지 분쟁에 대한 연구 - D.C. v. Heller와 New York State Pistol & Rifle Assoc. v. Bruen 대법원판례를 중심으로 -

Gun-related violence and mass murders have increased dramatically over the recent years in the United States. The constitutional issue related to gun violence stems from the Second Amendment of the U.S. Constitution which provides that “the right of the people to keep and bear Arms, shall not be infringed.” There are two main issues with regard to the Second Amendment: whether the Second Amendment grants individual rights to possess gun in the home; and the extent of the right of an individual to carry guns in public. As to the first issue, the Supreme Court in District of Columbia v. Heller held that individuals have a right to own guns in the home for the purpose of self-defense. The second issue arose in the context of the licensing scheme in which the applicants for public-carry license will be either approved or denied. New York and six other states have “may-issue” laws in which the licensing authority has a wide discretion in deciding the approval of applications. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that New York’s “may-issue” law infringes upon individuals’ right for self-defense outside of the home in violation of the Second Amendment and thus extended the individual self-defense rights from the home to the outside of the home. In invalidating D.C. and New York gun laws, the majority opinions in both Heller and Bruen relied on the “text, history, and tradition” test instead of applying any of the standards of review. The dissenting opinions relied on the historical analysis as well as the interest-balancing test—intermediate scrutiny. This article analyzes the majority and dissenting opinions of both Heller and Bruen and posits that the Heller decision can be validated although strong arguments against the decision can be made firstly that the Justices in Heller interpreted the relevant constitutional provisions contrary to their previous way of interpretation and secondly that the Justices did not give due deference to the state legislatures concerning gun issues and regulations. On the other hand, this article argues that the Bruen case is wrongly decided because the majority opinion (1) failed to apply the appropriate standard of review despite the fact that New York’s “may-issue” law is not as restrictive as D.C.‘s ban on handguns, (2) ignored the severity of gun-related violence and casualties that the gun-carry right in public would bring in the United States, and (3) failed to recognize the Heller decision that the Constitution allowed state governments to enact laws to deal with gun violence issues.