Citation

Lott JR. Md. Law Rev. 2012; 71: 1205-1218.

Copyright

(Copyright © 2012, Maryland Law Review, Inc)

DOI

unavailable

PMID

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Abstract

United States District Court Judge Benson Legg's decision to strike down Maryland's requirement of a "good and substantial reason" for issuance of a handgun permit in Woollard v. Sheridan seemed inevitable after recent Supreme Court decisions. In District of Columbia v. Heller, Justice Scalia wrote: "At the time of the founding, as now, to 'bear' meant to 'carry.'. . . [T]he carrying of the weapon is for the purpose of 'offensive or defensive action.'" In McDonald v. City of Chicago, Justice Alito also stressed the fundamental "right to keep and bear arms." While government might regulate how guns may be carried, it seems doubtful that it can completely ban the "bearing," or carrying, of guns. Whether such regulations must meet the same strict scrutiny test as regulations of other "fundamental" rights or a lesser standard of intermediate scrutiny, a balancing test is necessary. In the case of concealed carry laws restricting the right to carry a concealed gun in public, however, gun control proponents face a heavy burden.

Under "strict scrutiny," a regulation will only be upheld if it "furthers a compelling interest and is narrowly tailored to achieve that interest." That is, the governmental goal must be something crucial and there cannot be other less restrictive means of accomplishing the same goal. Intermediate scrutiny is an easier to meet standard where, as Judge Legg writes: "the government's interest must be 'significant,' 'substantial,' or 'important,'. . . and the 'fit' between the challenged regulation and the asserted objective must be reasonable, though not perfect."

Public safety might surely fit both the definitions of "compelling" or "important," but there is still a balancing test of how large the public safety benefits are. Will the regulations reduce crime enough to justify infringing on a "fundamental" right to self-defense? That is ultimately an empirical question. The only difference between "compelling" and "important" is how large that drop has to be before the regulation is allowed. In addition, under either standard, gun control advocates must show that there are not other ways of accomplishing the reduction in crime...

Language: en