THE SECOND AMENDMENT U.S. SUPREME COURT CASE LAW
by Jesús Betancourt
The Second Amendment of the United States constitution specifies: “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 Amendment was added to the United States Constitution as a part of the Bill of Rights in 1791, and since then its purpose and meaning have been a matter of considerable debate. A debate focused on the question of whether the text recognizes the right of private individuals to own and bear arms, or a right to bear arms only in the context of a military organization, such as, National Guard Units (Gale, 2018).
Proponents of the latter view, contend that by circumscribing the right to military duty, the government can restrict guns in all other situations, as long as the restrictions are rational and serve a public safety purpose.
A view in stark contrast to that of those who say that the text creates a fundamental individual right to gun possession¾¾a constitutional right that cannot be undermined by the government by passing indiscriminate legislative actions to control and or limit private individual gun possession. They do concede, however, that the government can lawfully limit guns in some limited situations, such as, enacting bans on possession of guns by children or the mentally ill.
The U.S. Supreme Court, however, in the case of District of Columbia v. Heller (2008), seems to have settled the debate. In Heller, the Court held that the 2nd amendment does grant individuals the right to own a firearm but only for conventionally legal purposes, such as for keeping an arm at home for self-defense. In doing so, the Court struck down Washington D.C. provisions that prohibited practically all handguns, and required that other types of firearms in a home be taken apart or secured by a trigger lock at all times.
The Court found that the challenged provisions limited the “core lawful purpose of self-defense.” A purpose. which according to the court, was not conditioned on militia service.
The Court also made clear in its decision, that although the right to bear arms is a constitutionally protected individual right, it has clear limits. Justice Scalia in his majority opinion wrote that the Second Amendment did not confer the right to “keep and carry any weapon whatsoever, in any matter whatsoever, and for whatever purpose.” He also made clear that “dangerous and unusual” weapons are not constitutionally protected.
The Court also provided examples of gun regulations that do not violate the Second Amendment. Such as, 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. Qualifications and conditions imposed on the commercial sale of arms were also deemed permissible.
Two years later, in the case of McDonald v. City of Chicago (2010) the Supreme Court held that the right to keep and bear arms which was recognized in Heller was also applicable to the states by virtue of how the Due Process Clause of the Fourteenth Amendment of the Constitution, incorporates the Second Amendment. By this time, the Supreme Court, in prior years, had already incorporated via the Due Process clause the first eight amendments to the constitution.
Thus, presently, the law of the land is that although the Second Amendment contains a fundamental right for private individuals to at least keep and bear handguns for self-defense purposes, the government still has the right to restrict the keeping of arms by private individuals in other situations, as long as these laws are not arbitrary and serve a reasonable public purpose.
Accordingly, following Heller, lower courts have consistently relied on the Supreme Court’s s narrow interpretation of the right embodied in Second Amendment to uphold many local statutes that limit the right of individuals to keep and carry weapons.
For instance, on June 9, 2016, the U.S. Ninth Circuit Court of Appeals ruled that, “the right of the general public to carry concealed firearms in public is not, and never has been protected by the Second Amendment. (Gonzales, 2016).” Therefore, perpetuating a policy requiring a permit and “good cause” for obscured carry permits in California. A study conducted in 2018 revealed that 91% of the court cases with claims stating a government act or policy violates the Second Amendment failed to push through.
I contend that the failure of the Court to expressly extend the Second Amendment right beyond the possession of handguns for self-defense still allows the government to aggressively pursue gun control via legislation.
References
Gonzalez, R (2016). Federal Appeals Court Says There Is No Right to Carry Concealed Weapons In Public. Retrieved February 18, 2021, from: https://www.npr.org/sections/thetwo-way/2016/06/09/481451209/federal-appeals-court-says-there-is-no-right-to-carry-concealed-weapons-in-publi
U.S. Supreme Court (2007). District of Columbia v. Heller.
U.S. Supreme Court (2010). McDonald v. City of Chicago