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The History of Gun Possession Laws in the United States
In 2010, the Supreme Court issued a very important ruling regarding guns in the case of McDonald v. Chicago. The Court confirmed that U.S. citizens have a right to possess firearms. After years of confusion, this ruling clarified the right to bear arms in the Second Amendment of the Constitution.
Before this decision, it was highly contested as to whether the right to bear arms applied only to “well-regulated militias” or to individual American citizens. After the McDonald decision, an individual’s right to own a gun is now well established. As a result, most gun laws now focus on other aspects besides ownership, such as:
- When an individual may carry a concealed weapon
- The type of weapons that may be owned
- Carrying capacity of firearms
- The “open-carrying” of handguns
The McDonald case also resolved any doubts left by another important gun control case, Columbia v. Heller, which upheld the right to bear arms for “federal enclaves” such as the District of Columbia. In McDonald, the Court essentially extended an individual’s right to bear arms to all states and not just federal territory.
Notwithstanding, after McDonald, many states permit requirements are coming under attack. For instance, in early 2014, a California man filed suit challenging many of the permit requirements in effect in big cities like San Diego, San Jose, and San Francisco. These types of lawsuits are popping up more and more frequently.
When Can I Legally Possess a Gun without a Valid Permit?
The Supreme Court specifically stated that both the McDonald and Heller decisions will not interfere with any existing statutes and regulations. Thus, the Second Amendment right to bear arms is not an absolute right. It does not mean that a person can carry or use a gun in any manner or for any purpose that they choose. Individual citizens must still abide by state statutes that require permits for the carrying of guns, whether concealed or not, or risk violating those permit laws. For example, statutes that prohibit convicted felons from using guns are still in effect.
Thus, it is vital to be aware that each state has different laws when it comes to gun possession. In most states, you do not need a permit simply to own a gun. By contrast, in some states, and for certain people, an ID card or license may be required to possess a gun.
Exceptions to Laws Requiring a Permit to Carry a Gun
Laws that forbid the possession and carrying of handguns will often include limited exceptions, meaning that there are certain places where it is legal to carry a handgun without a valid permit or license to do so. These exceptions are generally limited to when someone is 1) in their home, or 2) in their place of business Again, these laws vary widely by state and even by local jurisdiction.
1) Possession of a Gun In the Home:
Even in jurisdictions where it is illegal to carry a gun without a valid permit, you may be allowed to do so in your home. The law recognizes the importance of protecting one's home and often makes this exception where the carrying of a gun without a permit is otherwise illegal. However, even this exception may have a few exceptions.
- “Home” may or may not include a residential dwelling that a person rents.
- Ownership alone may not satisfy the exception. For instance, courts may be reluctant to extend this exception to property that a person owns but does not actually live in.
- This exception also does not include possession of a gun when a person is in another person’s home, although if the person carrying the gun is frequently staying overnight in the other person’s home, a court may be more inclined to apply the exception.
2) Possession of a Gun in a Place of Business:
Laws that make the concealed carrying of a gun without a valid permit illegal will often include an exception for when a person is in their place of business. This exception is designed to allow gun possession for the purpose of the protecting a business and the person’s ownership interest in the business. What constitutes a "place of business" will be determined by the court and is often an area of debate when a gun possessor claims to fall within the scope of this exception.
Should I Consult an Attorney?
If you are accused of gun possession or another gun offense, you should speak to a criminal defense lawyer immediately. Even if you have not been accused of a crime, you may wish to consult with a lawyer if you have concerns regarding the gun laws in your area.
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Last Modified: 08-26-2015 11:09 AM PDT
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