When Seconds Count, the Supreme Court is Just Years Away: Protecting the Fundamental Right to Bear Arms for Self-Defense

Abstract

The Purpose of this Note is to examine the right to bear arms for self-defense as a fundamental right. With the issue of gun violence perpetually in the news, the Second Amendment faces tough public scrutiny. The Supreme Court has a long history of offering higher levels of scrutiny to rights that are deemed fundamental. In a recent Supreme Court case, Caetano v. Massachusetts, Justice Alito wrote in his concurrence how the right to bear arms for self-defense is a fundamental right which should not be infringed upon through statutory measures. The proposal in this Note is to take the prongs discussed in both Heller and Caetano and construct a test going forward to protect the right to bear arms for self-defense.Without a test or rule to protect the Second Amendment right to self-defense, the right is at the mercy of every lower federal court. A recent example includes a Ninth Circuit case where the Court held citizens do not have a right to a carry and conceal permit. By failing to provide a test, the Second Amendment’s right to bear arms for self-defense remains vulnerable to further erosion by activist federal justices. If the Supreme Court seeks to extend more protection to rights that are deemed “fundamental”, then the fundamental right to self-defense is a right that is overdue for heightened protection.The Note’s examination of the history and evolution of the right to bear arms for self-defense begins with Philosopher John Locke and continues through English common law, up to the drafting of the Bill of Rights. The fundamental right to bear arms for self-defense has a long history that is inherent in our ordered sense of liberty and should be afforded the heightened scrutiny a fundamental right deserves under the Constitution.