Do ALL Americans Have The Right To Carry A Loaded Firearm?

by Toni Wellen, CAGV Chair Emeritus

That is what some want and what the Supreme Court is now ruling on once AGAIN.

Background: Second Amendment, ratified in 1791, was proposed by James Madison to allow the creation of civilian forces that can counteract a tyrannical federal government.

Second Amendment states:  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. The history and tradition of gun regulation in the U.S. shows clearly that the Founders thought that state and local governments should be free to regulate the carrying of guns, concealed or not, in public.

Former Chief Justice Warren E. Burger stated in 1991: the Second Amendment has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public.”

Judges who interpret the nation’s laws say the Second Amendment to the Constitution does not guarantee an individual’s right to bear arms. In fact, no federal court has ever ruled that the Constitution guarantees Americans the right to own a gun.

The origins of the Second Amendment can be traced to its English origins developed in the late 16th century when Queen Elizabeth I instituted a national militia in which individuals of all classes were required by law to take part to defend the realm.

All members of the National Guard of the United States are also members of the organized militia of the United States. National Guard units are under the dual control of the state governments and the federal government, as a military force that is not part of a regular army and is subject to call for service in an emergency.

The right to carry a firearm in public varies from state to state. What is the difference between Shall Issue and May Issue?

“Shall Issue”
means that, as long as an applicant passes the basic requirements set out by state law, the issuing authority (county sheriff, police department, state police, etc.) is compelled to issue a permit.

“May Issue” means that some states are more restrictive and require that the person provide a reason for wanting to carry concealed. The person has a real reason to fear for his/her life or safety, or that of family. The following states are may-issue by law: California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island.

In the Heller case (2008), the high court ruled for the first time that the Second Amendment right to keep and bear arms grants individuals the right to keep a gun at home for self-defense.

In the McDonald case (2010), the high court argued that states should be able to tailor firearm regulation to local conditions. The outcome of this case will affect the ability of states to regulate the possession of handguns in their jurisdictions. Since then, the court has remained silent on gun rights, even as 1,400 cases were filed to challenge existing gun regulations.

Now the long-awaited time for gun-rights advocates has arrived, as the court examines how far a state may go in regulating an individual’s right to carry a gun outside the home. The test case is from New York, which, along with seven other states, has the most restrictive laws in the U.S. when it comes to carrying guns outside the home. Under New York’s “proper cause law,” people applying for a license to carry a concealed weapon outside the home must show that they have a concrete need for self-defense, a “proper cause.”

The challengers contest that the right to carry guns outside the home is like the right to free speech or any other right guaranteed by the Constitution. However, scholars note, even if the Constitution did guarantee a right to keep guns, it would not stop government from regulating possession and use in the name of public safety. In this vein, the right to free speech in the First Amendment is not absolute.

Nearly every idea in the Bill of Rights comes with restrictions and limitations. To think that the Second Amendment should be any different is absurd, writes editor Michael Tomasky, of The New Republic. Famously stated by Justice Oliver Wendall Holmes, “the right to free speech does not give anyone the right to yell ‘fire’ in a crowded theater.”

The problem challengers have is that the public safety considerations are so tremendous and varied on the side of gun regulation – something that is not equally true of other rights. Law-abiding citizens can, in an instant, become lawless citizens in a moment of passion, a moment of argument, and incidentally, increasingly in political moments of disagreement. In fact, according to the statements of rioters who stormed the Capitol on Jan. 6, 2021, many said they left their guns at home because of laws in the District of Columbia that make carrying guns in public illegal.

This is just the first case to explore what limits the Constitution permits on the right to carry guns outside the home without having to plead a special requirement. The question for you – the general public – Do you feel safe knowing that anyone, possibly someone with no training in firearm safety, is able to carry a concealed weapon?

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