The Second Amendment to the United States Constitution acknowledges the right of the people to keep and bear arms. The exact meaning of this phrase remains unresolved and hotly debated. The Supreme Court has not yet defined what this phrase means in practice.
Second Amendment and the Right to Bear Arms Law
What Does the Second Amendment Say?
The Second Amendment states, “[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.” The Supreme Court has not provided many decisions regarding the meaning of the Second Amendment.
Does the Second Amendment Apply to the States?
The Supreme court ruled in 2010 that the Second Amendment right to bear arms applies to the states. Because of this, state gun control laws across the United States are being questioned with regards to their constitutionality.
The Supreme Court provided few indications as to what types of gun restrictions would be considered constitutional and which would not be considered constitutional. These laws will have to be processed through the judicial system in order to narrow down the specifics of their constitutionality.
How has the Supreme Court Interpreted the Second Amendment?
The Supreme Court ruled in 1876 that the Second Amendment only applies to limit the federal government. This means, according to second amendment law, that the rights that are granted by the Second Amendment can be limited by state governments.
The Supreme Court held in 1939 that the purpose of the Second Amendment was to protect the continuation and effectiveness of state militia organizations. This decision struck down the concept that there was an individual right to bear arms which is separate from the promotion of a state militia.
In 2008, the Supreme Court rejected the argument that the right to bear arms was only related to a militia. It held that the second Amendment creates a right for an individual to possess a gun for self-defense, at least in their home.
In 2010, the Supreme Court held that the Second Amendment right to keep and bear arms applies against state governments. In 2016, the Supreme Court held that the Second Amendment applies to stun guns.
The Supreme Court has also indicated that the Second Amendment continues to allow for limits on guns, including:
- Not permitting all individuals to possess a weapon, such as withholding the right from felons;
- Not permitting guns to be carried everywhere, such as sensitive locations, including schools and government buildings;
- Restrictions on the sale of guns;
- Banning certain types of guns, such as short-barreled shotguns; and
- Outlawing concealed weapons.
Is There an Individual Right to Bear Arms?
Many states have created an individual right to bear arms in their state constitutions pursuant to the Second Amendment. Currently, all but six states have a constitutional right to bear arms. These include:
- New jersey; and
- New York.
It is important to note that even though a state may allow an individual to carry a firearm, there are often limitations and regulations. For example, an employer may prohibit guns in the workplace but guns in the parking lot laws may permit an employee to keep their firearm in their personal vehicle, so long as it is secured.
Some employers require employees to give notice that they carry a firearm in their vehicle or to provide proof of their right to carry the firearm, such as a state permit. Currently, employees will most likely be required to comply with these requests.
What about Gun Advocates and the Right to Bear Arms?
There are two general categories of individuals who debate regarding the right to bear arms:
- Pro-gun advocates, who support the right to bear arms; and
- Gun control advocates, who desire to limit the right to bear arms.
Pro-gun advocates argue that the United States Constitution guarantees individuals the right to possess and carry firearms. The view legislation which infringes upon this right as unconstitutional. One of the most preeminent gun advocacy groups is the National Rifle Association (NRA).
Gun control advocates argue that the Second Amendment does not grant individuals the right to bear firearms. They argue it only guarantees the states the right to form militias.
Advocates of Gun control support:
- More stringent firearm laws;
- More demanding background checks for prospective gun purchasers; and
- Longer waiting periods for those purchasing firearms.
What are Gun Control Laws?
Gun control laws refer to policies that regulate the possession and purchase of firearms. This includes what types of guns may be owned, the waiting periods that are required for the purchase of a firearm, and the classification of individuals who are prohibited from owning firearms.
Both federal and state laws allow individuals to purchase and possess firearms. There are, however, federal and state laws which regulate the possession and use of firearms. Firearm owners, dealers, and collectors are required to follow these laws if they possess a firearm or run a business selling firearms.
What are Some Aspects of Gun Control Laws?
Although specific gun control laws may vary by jurisdiction, common aspects of gun control laws include waiting periods and background checks.
Numerous states require a specific amount of time to pass between the time an individual purchases a firearm and the time at which they are permitted to take possession of the firearm. This type of law seeks to discourage a rash or spur of the moment crime by imposing a mandatory cooling off period.
In some states, a background check is mandatory prior to an individual purchasing a firearm. In addition, some states require an individual to attend firearm safety classes.
What are Examples of Federal Gun Laws?
Federal laws that regulate gun ownership to some degree include the National Firearms Act (NFA) and the Brady Handgun Violence Protection Act. The NFA places certain restrictions on the sale or possession of a short-barreled shotgun, a machine gun, and a silencer.
If an individual wants to purchase a firearm or a device that is regulated by the NFA, they are required to take the following steps:
- Pass an extensive background check;
- Purchase a tax stamp for the manufacture of the device or firearm; and
- Register the device or firearm with the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ NFA registry.
In some states such as New York and California, ownership of firearms or devices that are governed by the NFA are prohibited. The Brady Handgun Violence Prevention Act prohibits firearms for personal or business use if an individual:
- Is a fugitive from justice;
- Is addicted to, or illegally uses any controlled substance;
- Was convicted of a crime which was punishable by a prison term of more than one year, called a felony;
- Is in a mental institution or has been ruled mentally unfit by a court;
- Was dishonorably discharged from the U.S. Armed Forces;
- Is a U.S. citizen and has renounced their U.S. citizenship;
- Is living in the U.S. unlawfully;
- Has been convicted of domestic violence in any court;
- Has a restraining order against them which involves their intimate partner, partner’s child or children.
Should I Contact an Attorney Experienced with the Right to Bear Arms?
Yes, it is important to contact a government lawyer for any issues you are facing regarding the right to bear arms. If you have been charged with illegal gun possession or any other state or federal firearm violation, it is important to contact an attorney as soon as possible.
Your attorney can review your situation, determine if any defenses are available, and represent you throughout the legal process. An attorney can also provide advice regarding the laws in your state so that you have the proper knowledge to avoid any kind of criminal charges.
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