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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

After finding that the Second Amendment applies to the states as well as to the federal government, the court said, "Self-defense is a basic right, recognized by many legal systems from ancient times to the present day. Individual self-defense is the central component of the Second Amendment right. This right applies to handguns, because they are the most preferred firearm in the nation to keep and use for protection of one's home and family. Citizens must be permitted to use handguns for the core lawful purpose of self-defense." (McDonald v. Chicago)

With the Chicago statutory scheme declared unconstitutional under the Second Amendment, the case was returned to the lower courts to order the declaratory relief McDonald had sought.

Impact of Heller and Mcdonald

As a result of these back-to-back rulings from the Supreme Court, neither the federal government nor any city, county, or state may enforce any law that creates a blanket prohibition against the possession of firearms by an individual in the home. This is not to say, however, that all gun-control laws are unconstitutional. The Supreme Court reaffirmed in McDonald what it had said in Heller-that the Second Amendment does not permit all people to possess guns, of whatever kind, under all circumstances.

In the court's words, "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." (District of Columbia v. Heller)

Under these guidelines, federal courts have upheld against Second Amendment challenge a variety of gun-control laws. Cases include U.S. v. Williams (laws may constitutionally forbid felons from possessing firearms); U.S. v. Marzzarella (upholding a law that criminalized possession of a firearm with an obliterated serial number); U.S. v. Skoien (it is no violation of the Second Amendment to prohibit firearm possession by one convicted of misdemeanor domestic violence); U.S. v. Hart (police may detain a suspect on suspicion of carrying a concealed weapon, since that conduct is not protected by the Second Amendment); Virgin Islands v. Penn (a statute validly outlaws possession of machine guns); Warden v. Nichols (city may legitimately prohibit firearms in city parks); and U.S. v. Fincher (there is no Second Amendment right to possess a sawed-off shotgun).

Likewise, state court decisions have found no constitutional problem with gun-control laws that fit within the exceptions noted in Heller. Examples include People v. Villa (upholding a law against carrying a loaded firearm in a public place); People v. James (approving a ban on possession of assault weapons and .50 BMG rifles); People v. Joel O. (ruling that a person expressing homicidal and suicidal tendencies has no Second Amendment right to have a gun); Crespo v. Crespo (firearms may lawfully be seized in the home during a domestic violence investigation); and People v. Marsh (holding that possession of firearms can constitutionally be denied a person previously convicted of misdemeanor assault with a deadly weapon).

Local Enforcement

Because both Heller and McDonald considered the issue of possession of handguns in the home for protection, the decisions do not necessarily allow possession in any other place. Officers seeking to enforce state or local laws that prohibit firearms in public, possession of unusual firearms, or possession by classes of persons historically forbidden to have guns can, in most cases, continue to enforce such laws, subject to the advice of local prosecutors or legal advisers. 

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 12 books, including "Investigative Constitutional Law."

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