Second Amendment Exceptions
In the few months since it was issued, the Heller decision has repeatedly been invoked in defense of various firearms charges around the country. Criminal defendants have sought to use Heller and the Second Amendment to fight charges of illegal possession. So far, lower courts have not refused to enforce longstanding prohibitions on concealed firearms or the possession of weapons by convicted felons and certain others, or on the possession of unconventional dangerous weapons such as machine guns and sawed-off shotguns.
Foreseeing that challenges would arise, the Supreme Court affirmed in Heller that such restrictions would not violate the Second Amendment. Said the court, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever and for whatever purpose. For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.
"Nothing in our opinion should be taken to cast doubt on the 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 on the commercial sale of firearms." (DC v. Heller)
Citing this language, federal appeals courts have ruled that the Second Amendment is not violated by laws forbidding convicted felons from possessing guns (U.S. v. Irish), nor by prohibitions on the possession of machine guns (U.S. v. Gilbert), nor by bans on sawed-off shotguns. (U.S. v. Fincher) State courts have read Heller as allowing punishment for carrying a concealed firearm. (People v. Flores) So while Heller has upheld the right of law-abiding individuals to possess handguns and unlocked long guns in the home for self-defense, most weapons-violations statutes will remain enforceable.
Obviously, laws affecting the possession of firearms by both law enforcement officers and civilians are undergoing revision and challenge. It's important for officers to keep updated on the developments with ongoing training and research. Local prosecutors and legal advisers should be consulted as to specific issues in your jurisdiction.
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 11 books, including "Courtroom Survival, The Officer's Guide to Better Testimony."