Patrick J. Charles[*]
In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate[1] over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago.[2] This Article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of open-carry or conceal-carry prohibitions. He inaccurately claims that the founders left insufficient historical evidence to support such prohibitions.[3] Thus this Article addresses those concerns through the use of “historical guideposts.”[4] The second aspect this Article sets forth to address is Rosenthal and Malcolm’s characterization of the Second Amendment’s “well-regulated militia” language,[5] for it highlights a historical and legal error that continues to pollute contemporary Second Amendment jurisprudence. As this Article will explain, a “well-regulated militia” does not merely equate to “well-trained,”[6] nor is it a vehicle to analyze gun control regulations[7] in the constraints of the opinion in District of Columbia v. Heller.[8]
