The Supreme Court recently held that individuals have a “fundamental” right to keep and bear firearms. McDonald v. Chicago, ___ U.S. ___ (2010); District of Columbia v. Heller, 554 U.S. ___, 128 S. Ct. 2783 (2008). If Americans had a fundamental right to liberty, these cases would have been unnecessary. There would already be a fundamental right to keep and bear arms or, for that matter, to do anything else that cannot be shown to do real harm.
However, the McDonald and Heller cases are instructive. The lengths the Supreme Court had to go to in order to establish individual gun rights and the forcefulness of the several dissents show just how grudging the federal courts are in recognizing that Americans have any fundamental rights at all—let along a general right to individual liberty.
The Supreme Court in McDonald and Heller left open the door for governmental entities to continue imposing some restrictions on firearms. It is unclear how all of this will play out. If a fundamental right is involved, presumably some version of strict scrutiny ought to apply in assessing the validity these restrictions, which would mean the restrictions must:
Promote a compelling governmental interest. That is, they must address harms that are real and, also, the government must show that the restriction "will in fact alleviate those harms to a material degree."
Be narrowly tailored to promote the compelling interest.
Have no less restrictive alternative that would also serve the compelling interest. Cf. United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000)
There is rather obviously a compelling governmental interest in preventing certain people from possessing and carrying firearms, for example, the mentally unstable or terrorists. However, the compelling interest may not reach as far as current gun regulations often extend. If the supposed “harms” are not provably real, the law is not narrowly tailored or there are less restrictive alternatives, the fundament right to liberty should prevail.