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Departments : Point of Law

Second Amendment v. Gun Control

The Supreme Court weighs in on firearms owners' rights, again.

October 01, 2010  |  by Devallis Rutledge - Also by this author

The Second Amendment says this: "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." Does this mean that only members of a militia have a right to keep and bear arms, or do individuals also have this right? Does the Second Amendment apply only to the federal government, or also to states, counties, and cities?

Twice in two years, the U.S. Supreme Court decided cases that presented issues of the power of governments to limit the individual possession of firearms. The first of these cases arose in a federal jurisdiction (the District of Columbia); the second concerned ordinances adopted by a city. In both cases, the court held that the Second Amendment does not allow the blanket prohibitions against individual possession of handguns contained in the local laws.

District of Colombia V. Heller

Dick Heller, a DC special police officer, carried a handgun while on duty at a federal facility, but he was not authorized to possess the gun at home. He challenged a local ordinance that prohibited the unauthorized private possession of handguns anywhere-even in the home. He argued that he had a right under the Second Amendment to keep a handgun at his residence for protection.

Opposing Heller's lawsuit, DC officials argued that the Second Amendment was not designed to protect an individual's right to have a firearm but only to guarantee the right of government entities to maintain armed militias, such as the National Guard and state troopers. If this was the correct interpretation of the Second Amendment, the DC ordinance would not be unconstitutional.

The Supreme Court examined the history of the debate and adoption of the Second Amendment and concluded that the primary reason for its inclusion in the Constitution was to foster personal protection in the home. This meant, said the court, that the Amendment protected an individual right of gun ownership and possession. Insofar as the DC ban conflicted with this conclusion, it was ruled unconstitutional.

The District of Columbia, however, is a federal enclave. The Heller case therefore did not decide whether a constitutional amendment that applies to the federal government would also apply to the states. That ruling awaited the next case.

Mcdonald V. Chicago

Otis McDonald, a resident of Chicago, wanted to keep handguns in his home for self-defense. A Chicago ordinance provided that "no person shall possess any firearm unless such person is the holder of a valid registration certificate for such firearm." The catch was that another provision of the city code prohibited the registration of most handguns, effectively making private possession illegal.

The city claimed that these gun-control statutes were necessary to protect residents from injury and death. However, police statistics indicated that after enactment of these ordinances, the murder rate actually increased in Chicago, eventually becoming one of the highest murder rates in the country.

McDonald sued the City of Chicago, asking the federal court to declare the ordinances unconstitutional. Both the federal district court and the Seventh Circuit Court of Appeals dismissed the suit, ruling that the Heller decision applied only to federal jurisdictions and not to the states, and that the Second Amendment did not protect an individual right to keep and bear arms within the states. McDonald appealed, and the Supreme Court reversed the lower courts.

Comments (3)

Displaying 1 - 3 of 3

Charles Nichols / CNRepor @ 2/14/2011 3:15 AM

Neither of the US Supreme Court cases Heller nor McDonald limit the right to carry a weapon to the home. The High Court said there were some places "such as" the home where a person who is neither a convicted felon nor insane cannot be prohibited from carrying a gun and certain sensitive public places "such as" "schools and government buildings" where a person can be prohibited from carrying a weapon.

The Brady Center filed an Amicus Brief in the case of Peruta v San Diego claiming that the right to carry a weapon, in this case a handgun, applied only to the home. Chief Federal Judge Irma Gonzalez rejected that argument (also made by the attorney for the Sheriff). Instead, she affirmed the right of persons to openly carry firearms for the purpose of self-defense.

She did not say that the PC 12031 requirement to keep firearms unloaded was constitutional because neither party challenged the statute.

There was a February 2010 decision by the 9th Circuit Court of Appeals (US v Vongxay) finding that a key paragraph of Heller was not "meaningless dicta" meaning that it is the law within the jurisdiction of the 9th Circuit Court of Appeals (which includes California). That paragraph cited two cases which upheld the right to openly carry a firearm.

The High Court was ambiguous on the question of concealed carry. However, there is no question that there is a fundamental, individual, enumerated constitutional right to openly carry a weapon (not limited to handguns) in public for the purpose of self-defense.

California is the only state to require that openly carried firearms in public be unloaded until a person is in danger (plus a few other exceptions).

The High Court does not recognize PC 12031(e) as a Constitutional exception to a warrantless search.

A police officer should ask himself if he really wants to be a test case for California's unconstitutional gun laws; given that there is no "good fai

Gene mcCarthy @ 2/14/2011 8:12 AM

Mr. Rutledge, I am also a former police officer. Your involvement and position on local enforcement of the possession of unloaded handguns in public is erroneous. You sir are erroneous. The federal government, state government nor the local government cannot take away God given inalienable rights to freedom, the right to assemble, free speech or the right to defend oneself in the home or on the streets of any city in this Constitutional Republic. Have you no shame? Men and women died on battlefields for our rights and you want to deny those freedoms to law abiding free citizens.

Hunt @ 10/2/2012 3:17 PM

"...Seventh Circuit Court of Appeals dismissed the suit, ruling that the Heller decision applied only to federal jurisdictions and not to the states, and that the Second Amendment did not protect an individual right to keep and bear arms within the states." How is there a difference because the federal court is over the state court, so the federal court overrules the state I think.

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