In McDonald v. Chicago, the Supreme Court incorporated the Second Amendment individual right to bear arms elucidated in District of Columbia v. Heller, and made the right applicable to state action. While Heller defined the right, McDonald clarified some of the justifications for limiting that right through appropriate government regulation.
However, because Second Amendment jurisprudence is still in its infancy, the Court conspicuously left many questions unanswered. Included amongst those questions is: What is the exact breadth and depth of the right to bear arms?; To what extent may the government permissibly restrict the right to bear arms?; and, What is the level of scrutiny that ought to apply when courts consider the constitutionality of restrictive regulatory schemes that seek to abridge the right to bear arms?
Through a comprehensive and in-depth analysis of Heller and McDonald, as well as an overview assessment of the history of the right to bear arms in Colonial America and British common law, this Note argues that the right to bear arms is a pre-existing right held by all Americans, predating the Second Amendment, and is a broad right to possess any firearm not specifically designed for military use, at most times and places except those proscribed for a compelling governmental purpose, and for any lawful purpose, as defined by permissible government regulation.
Lastly, this Note argues that the Second Amendment does not fit squarely within the established levels of scrutiny. Rather, the Court ought to apply an ill-defined and rarely-utilized modus operandi of judicial scrutiny that the author calls “sliding-scale scrutiny,” where the level of scrutiny varies depending on the effect of the regulation on the core of the right. Under such a level of scrutiny, many restrictive regulatory schemes, such as one-gun-per-month laws, which strike directly at the core of the right, should be held unconstitutional.