DISCUSSION OF RIGHT TO BEAR ARMS UNDER THE UNITED STATES CONSTITUTION
The right to bear arms is an individual constitutional right that states, “a militia that is well regulated for the safety of a free state, is a right that shall not be violated” (United States: Gun Ownership and the Supreme Court 2012). It is the second amendment in the United States constitution, and since its enaction, it has created a large and continuous debate. As a result of this individual right, the concept of individual right theory has been construed, which leads to the United States’ constitutional right to restrict the legislative bodies from prohibiting the possession of firearms. The amendment’s prohibitory regulation is rendered unconstitutional. On the other hand, the collective rights theory under the second amendment stated that all citizens don’t have the individual right to own, making the federal legislative bodies and the local state to have the authority to modulate firearms without incriminating the constitutional right (Delbert, 1984).
In the United States vs. Miller’s case, the Supreme Court in 1939 adopted the collective right approach. United States v. Miller, 307 U.S. 174, 59 S. Ct. 816 (1939). They committed an illegal, felonious, and willfully transport in interstate commerce from Oklahoma to Siloam springs. Id. The defendants at that time were transporting firearms that they did not register. The court asserted that the evidence was not admissible to suggest that the efficiency or the preservation of a militia is well regulated. It further concluded that the framers involved the second amendment in providing the military’s validity.
In the case of District Columbia vs. Heller, the plaintiff disputed the constitutionality of Washington D.C. in respect to the ban of handguns, which was a statute that lasted for 32 years. District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). It was considered the most rigid statute in the nation (Carlton, 2008). The District of Columbia law banned the ownership of handguns. It made it a crime to have a firearm that is not registered and banned the handguns’ registration but authorized the police chief to provide a one year license. It also required residents to have unloaded, dissembled, lawfully firearms that would be triggered by a lock or the same device. The respondent, a unique policeman, requested to register the handgun to keep it at home. However, the District declined. He decided to file a suit based on the second amendment’s grounds to encourage the city to implement the bar on the licensing requirements, requirements of trigger-lock, and the handgun registration since it has barred the usage of firearms home. The court had 4-5 decisions and concluded in respect to the second amendment history; the Washington D.C statute had infringed the right of the bear arm, which was struck down.
In McDonald vs. the City of Chicago, the suburb of Chicago had laws that banned handguns’ possession by most private citizens. McDonald v. City of Chi., 561 U.S. 742, 130 S. Ct. 3020 (2010). The petitioner went further and sought the declaration that the prohibition and the city ordinances that related infringed the second amendment and the fourteenth. Id. Justice Alito gave his opinion of the court and concluded that the fourteenth amendment established the second amendment’s right to bear arms with the aim of self-defense. Id. Justice Thomas asserted that the immunities and privileges clause must justify the incorporation.
However, the various questions that arise on whether these regulations are less rigid than the statute from D.C. First are whether the lower courts would apply their regulation by allowing permissible limitations and examining that they seek when scrutinizing the statute that violates the second amendment. The court used three approaches of scrutiny regarding the issue at hand. The first level is strict scrutiny, rational basis, and intermediate scrutiny.
Strict scrutiny is a judicial review form that courts use to dictate various laws’ constitutionality. It is often applied in courts when the plaintiff takes legal action against the government for being biased. It is applicable when one wants to institute an equal protection claim. Intermediate scrutiny is a test in court that determines the statute’s constitutionality. It is only cited when a federal government or state passes a statute that adversely impacts the protected classes (Adam, 2006).
Recently there are lower cases on the regulations that ban weapons on government property. This is illustrated in the case of U.S. vs. Clarence Paul Dorosan; the respondent brought an appeal after he was convicted for carrying a handgun into the postal service property in the United States. U.S. v. Dorosan, CRIMINAL ACTION NO. 08-042 SECTION “B” (3) (E.D. La. Jan. 22, 2009). Her argument was on the violation of the second amendment on the right to bear arms. It was held that it was not an unconstitutional act of police power considering that government business was being conducted. The law forbids the carrying of any firearm in sensitive places. In conclusion, the above facts failed to illustrate any fundamental burden on his chance to bring a claim on the second amendment; therefore, it was held to be unconstitutional under a degree of scrutiny.
The second regulation was the unlawful ownership of a firearm as a juvenile. This is demonstrated in the case of U.S. Vs. Rene, the appellant, was charged with owning a handgun, which was an infringement of 18 united states code section 922(x)2(A) and section 5032. United States v. Rene E., 583 F.3d 8 (1st Cir. 2009). On his appeal, he brought a constitutional challenge and argued that his rights regarding the second amendment were violated. Id. It was held that 18 of the united states code did not infringe the second amendment.
Finally, in the case of Kachalsky vs. County of Westchester, the appeal was on the licensing scheme of New York, on whether it infringed the second amendment by necessitating an applicant to show the proper cause of obtaining a license and carrying the handgun in public. Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012). Alan Kachalsky, together with other plaintiffs, applied for it, but it was declined by one of the defendants who was a licensing officer for not demonstrating the proper cause. Id. The district court asserted that the second amendment foundation did not have the locus standing to sue on behalf of themselves or the members. Id It concluded that the conceal aspect of carrying handguns in public is deemed to be outside the second amendment scope as asserted by Heller. He said that the necessity of proper cause would persist the constitutional scrutiny despite implicating the second amendment (Robert, 2017).
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