Frank Ettin
Administrator
[1] Although Heller clarified that the 2nd Amendment right to keep and bear arms is an individual right, we don't yet have a Supreme Court decision to the effect that the 2nd Amendment applies to the States. In fact, so far it does not (see Cruikshank and Presser). We're hoping to change that this year.NavyLT said:Would you agree, though, that states which make the ONLY lawful way to carry a firearm is with a permit that a person must pay for, and pay for training to obtain that permit as infringing upon those rights? .... How is that not an unconstitutional infringement upon their rights?
[2] It is very well settled in Constitutional law that Constitutionally protected rights may be subject to limited regulation. There is a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible.
[3] There are several levels of scrutiny thus far applied to regulation of various types of Constitutionally protected rights. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:
[a] The regulation must be justified by a compelling governmental interest; and
The law or policy must be narrowly tailored to achieve that goal or interest; and
[c] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).
[4] While it's not yet been established that strict scrutiny will be applied to regulation of rights protected by the 2nd Amendment, let's assume it does. That would be the best result for us.
[5] In such case, I wouldn't be inclined to bet that a State might not be able to make a case that a licensing requirement, including required training, an age threshold and background check, to lawfully carry a loaded gun in public, as long as on a "shall issue" basis, passes even strict scrutiny. (I have no doubt that a "may issue" scheme would not.)