The Second Amendment – The Militia Issue 6 – Saul Roth

Image Credit: Pixabay

By Saul Roth

The lower courts now have to make some decisions based on Heller and McDonald. Because the U.S. Supreme Court did not provide a level of scrutiny, the lower courts will use their own discretion on the level of scrutiny to be used. Heller and McDonald have stated that bearing a gun is now for self-defense. The Court decided that inside the home, it is unconstitutional to restrict such possession. Strict scrutiny should be used for this type of case, however. The open carry and concealed carry is not a Constitutional right, but legal in some states. As with such cases in the lower courts, making future decisions on these types of cases should apply intermediate scrutiny. ( Kiehl, 2011).

Even though the Court did not rule on the carry of guns, it did offer prohibitions. The Court in doing so gave its opinion that the personal possession of guns should have restrictions. In this regard, if strict scrutiny is used by a lower court prohibition of the local court, the Appellate division of the Federal courts may not uphold gun for carry. Intermediate scrutiny is more heightened than a rational basis of review for an enumerated right. For these reasons, intermediate scrutiny would be the best standard to use for deciding cases of concealed and open carry of firearms (Kiehl, 2011).

Since bearing arms is now allowed for self-defense, the right to carry arms, both concealed and open, will be the next battleground for both the proponents and the opponents of gun possession. The prohibitions not specifically mentioned in Heller and McDonald will probably be argued in the lower courts and eventually in the U.S. Supreme Court. To date, however, every state and federal court decision since McDonald has upheld gun legislation. A California court has stated” Heller’s implicit approval of concealed firearm prohibitions cannot be read to have altered the Court’s longstanding understanding that such prohibitions are constitutional”. Scalia in Heller opined for the majority that cases prior to Heller might not have been decided differently now than they were then. He is suggesting in this statement that an intermediate review should be used, as more strict scrutiny would have changed many decisions. (Kiehl, 2011).

Stephen Kiehl suggests a three-step inquiry by the Court on deciding firearm prohibition cases. First he believes the historical nature of the legislation should be examined. He believes the right itself should be examined, as it was for its scope during ratification. The second step to examine would be does the prohibition violate the core right to. After these two steps are examined with different rulings, then the level of scrutiny to be applied can be determined and applied (Kiehl, 2011).

After completing all the research, my opinion remains. The 2nd Amendment was for the right to bear arms for an organized militia. Even if that is not what the U.S. Supreme Court believes the right is supposed to be, as interpreted, and as it was to be used at the time of ratification, in 1791 when the 2nd Amendment was ratified, the right to bear arms referred to a flintlock firearm and a muzzle-loaded rifle. The threat to the early citizens of that time was much different than the threat citizens face today. The citizens of that time were very suspicious of a strong government, as they had lived under English tyranny for many years. We have citizens today who are suspicious of our large federal government. Some these people have taken up arms against our government. They have killed other citizens and federal agents. Timothy McVeigh bombed a government building killing many citizens. The right- to- bear arms’ proponents believe it is their right to own any type of weapon. The U.S. Supreme Court stated in its decisions that this right refers to what an ordinary citizen would own. Citizens do not have the right to have cannons, so why should they have assault weapons? There needs to be more common sense when deciding on and passing any firearm legislature.

Even though my beliefs remain as previously stated, I am not that unhappy with the decisions of the U.S. Supreme Court in Heller and McDonald. Prior to my research I believed that the Court should have decided that all firearm possession prohibition was unconstitutional. As I have explained in this paper, the main rationale for these decisions was that the 2nd Amendment intended firearm possession for self-defense. It also explicitly decided this rule meant having firearms for the home and not for concealed weapons and open carry in society . Even though firearms are dangerous in the home, I do understand the need to defend one’s home and family. Even though dangerous conditions can be present outside the home, in many instances, a person can flee or call the police. Indeed Heller and McDonald decisions were a good compromise for both the opponents and the proponents of guns. Unfortunately I think the decision will become a rallying point and an outcry for gun proponents in the future .