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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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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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