The Supreme Court and the Second Amendment

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by Douglas a. Prutton, Attorney

The entire Second Amendment to the United States Constitution reads as follows: “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.”  In the case of District of Columbia v. Heller, decided in 2008, a 5-4 majority of the United States Supreme Court for the first time concluded that this right to “keep and bear arms” is not limited by the reference in the first part of the amendment to a “Militia.”  The Court concluded that this first part of the Amendment was merely a “preamble,” and that the “operative” part of the amendment involving the right to keep and bear arms protected an individual’s right “unconnected with service in a militia.”

So, what is this right to “keep and bear arms?” The five-member majority in Heller articulated that the Second Amendment did not create this right.  Rather, this right evolved from English common law and the amendment simply provides that this ancient right “shall not be infringed.”  The Court described the right to keep and bear arms as “the right to possess and carry weapons in case of confrontation.”  The Court was quick to explain though that this right is “not unlimited” and does not “protect the right of citizens to carry arms for any sort of confrontation,” just like the First Amendment right of free speech does not protect the right to “speak for any purpose.” The Court refused to “undertake an exhaustive historical analysis of the full scope of the Second Amendment,” but emphasized that “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.” The Second Amendment, according to the Court, does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns:” it only protects weapons “in common use.”  Similarly, the amendment does not protect the “carrying of dangerous and unusual weapons.”

The Heller case involved a challenge to the District of Columbia’s laws forbidding handguns in homes and requiring all firearms in homes to have trigger-locks making them useless in defending the home from intruders.         The Court noted that “the inherent right of self-defense has been central to the Second Amendment right and that the D.C.s laws went too far.  The Court recognized the “problem of handgun violence in this country,” and that the District of Columbia still had a “variety of tools for combating that problem, including some measures regulating handguns.”  The Court also stated that it was not rendering its opinion on whether or not the right to keep and bear arms makes sense in our modern society: “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

The Court noted that “since this case represents the first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field … there will be time enough to expound upon the historical justifications for the exceptions we have mentioned.”  The lower Courts have been applying the Heller decision over the last 10 years in adjudicating the constitutionality of various gun control laws and in a future article, I intend to provide you with an update.

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