Ask The Lawyer: What exactly are the rights under the Second Amendment?

QUESTION: With the recent shooting in Parkland, Florida there has been a lot of talk about gun control and people’s Second-Amendment rights. But, what exactly are the rights under the Second Amendment?

ANSWER: The Second Amendment of the U.S. Constitution states, “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

Until 2008, whether this right to “keep and bear arms” existed outside the context of “a well-regulated militia” was hotly debated. In 2008, the U.S. Supreme Court resolved the issue – at least from a legal standpoint – by holding that Second Amendment confers the right to possess a firearm, and to use that weapon for “traditionally lawful purposes”, such as self-defense within the home.

The groundbreaking opinion in District of Columbia v Heller, 554 US 570 (2008) helped pave the way an expansion of gun rights, and provided ammunition for legal challenges to laws restricting such rights.

But the decision in Heller, was made in response to a restrictive District of Columbia law that essentially prohibited the possession of handguns. Among its provisions was a requirement that residents keep their lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device, and a prohibition against the registration of handguns coupled a law that made it a crime to carry an unregistered firearm.

The opinion, by the late Justice Antonin Scalia, found the DC law unconstitutional: The Second Amendment confers “an individual right to keep and bear” – to possess and to carry – firearms. But, Scalia said, that right is NOT unlimited:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In addition, Scalia stated the right to keep and carry arms extends only to weapons that are in common use; it does not extend to “dangerous and unusual weapons,” such as military weapons.

But since the Heller decision and 2010s decision in McDonald v. Chicago, 561 US 742 (which held that the Second Amendment is incorporated through the 14th Amendment against the states), the Supreme Court has seemed reluctant to enter the debate. This past month, it declined to hear a case involving a challenge to a California law requiring a 10-day waiting period for the purchase of guns, in November the Court took a pass on a case challenging the constitutionality of Maryland’s ban on certain semi-automatic rifles and hand guns. Last summer the Court declined to take up a case challenging another California law that bans the open carry of firearms and requires concealed carry applicants to demonstrate “good cause.” In the absence of Supreme Court action, decisions upholding the laws stand.

The Court also let stand a 2016 ruling that ordered the government to restore gun rights to two men convicted of misdemeanor offenses punishable by more than two years in prison. The Court of Appeals had held the federal firearms ban, which prohibits gun ownership by felons, was unconstitutional as applied to the two particular men, both of whom had lived blameless lives for decades.

While many states have chosen to expand the right to own and carry guns, challenges to laws that restrict the use of certain kinds of weapons in certain places, and by certain people have continued to pass constitutional muster.

For example, in 2017 the Court of Appeals for the Fourth Circuit upheld a Maryland law that law banned the ownership of assault weapons such as the AR-15 and other military-style rifles and shotguns. In 2014 an Illinois Court upheld a statute that barred a convicted felon from applying for a firearm until 20 years had passed since the conviction. 2015, a Florida District Court of Appeals upheld a law that banned the possession of firearms in university housing. In 2016, the District Court for Rhode Island upheld a law that required a showing of need for a concealed carry permit.

With or without Supreme Court action on the issue, the debate is unlikely to go away any time soon. According to one estimate, there are some 265 million legally owned firearms in the United States, about one gun for every American. However, a 2015 survey by Harvard researchers revealed that about half of all those guns are owned by just 3 percent of the gun-owning population, whose collections range from eight to 140 weapons. The percentage of gun-owning households in the United States has actually declined slightly over the past 28 years, from a peak of 47 percent in 1990 to 42 percent today, according to Statista. Of those who own guns, handguns are the most common (72 percent), followed by rifles (62 percent) and shotguns (16 percent).

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By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
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Troy, MI 48084
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