The Second Amendment of the United States Constitution reads: "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." Such
language has created considerable debate regarding the Amendment's intended
scope. On the one hand, some believe that the Amendment's phrase "the right
of the people to keep and bear Arms" creates an individual constitutional
right for citizens of the United States. Under this "individual right
theory," the United States Constitution restricts legislative bodies from
prohibiting firearm possession, or at the very least, the Amendment renders
prohibitory and restrictive regulation presumptively unconstitutional. On
the other hand, some scholars point to the prefatory language "a well
regulated Militia" to argue that the Framers intended only to restrict
Congress from legislating away a state's right to self-defense. Scholars
have come to call this theory "the collective rights theory." A collective
rights theory of the Second Amendment asserts that citizens do not have an
individual right to possess guns and that local, state, and federal
legislative bodies therefore possess the authority to regulate firearms
without implicating a constitutional right.
In 1939 the U.S. Supreme Court considered the matter in United States v.
Miller. 307 U.S. 174. The Court adopted a collective rights approach in this
case, determining that Congress could regulate a sawed-off shotgun that had
moved in interstate commerce under the National Firearms Act of 1934 because
the evidence did not suggest that the shotgun "has some reasonable
relationship to the preservation or efficiency of a well regulated milita .
. . ." The Court then explained that the Framers included the Second
Amendment to ensure the effectiveness of the military.
This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court
revisited the issue in the case of District of Columbia v. Heller (07-290).
The plaintiff in Heller challenged the constitutionality of the Washington
D.C. handgun ban, a statute that had stood for 32 years. Many considered the
statute the most stringent in the nation. In a 5-4 decision, the Court,
meticulously detailing the history and tradition of the Second Amendment at
the time of the Constitutional Convention, proclaimed that the Second
Amendment established an individual right for U.S. citizens to possess
firearms and struck down the D.C. handgun ban as violative of that right.
The majority carved out Miller as an exception to the general rule that
Americans may possess firearms, claiming that law-abiding citizens cannot
use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in
its dicta found regulations of similar weaponry that cannot be used for
law-abiding purposes as laws that would not implicate the Second Amendment.
Further, the Court suggested that the United States Constitution would not
disallow regulations prohibiting criminals and the mentally ill from firearm
possession.
Thus, the Supreme Court has revitalized the Second Amendment. The Court
continued to strengthen the Second Amendment through the 2010 decision in
McDonald v. City of Chicago (08-1521). The plaintiff in McDonald challenged
the constitutionally of the Chicago handgun ban, which prohibited handgun
possession by almost all private citizens. In a 5-4 decisions, the Court,
citing the intentions of the framers and ratifiers of the Fourteenth
Amendment, held that the Second Amendment applies to the states through the
incorporation doctrine. However, the Court did not have a majority on which
clause of the Fourteenth Amendment incorporates the fundamental right to
keep and bear arms for the purpose of self-defense. While Justice Alito and
his supporters looked to the Due Process Clause, Justice Thomas in his
concurrence stated that the Privileges and Immunities Clause should justify
incorporation.
However, several questions still remain unanswered, such as whether
regulations less stringent than the D.C. statute implicate the Second
Amendment, whether lower courts will apply their dicta regarding permissible
restrictions, and what level of scrutiny the courts should apply when
analyzing a statute that infringes on the Second Amendment.
Recent case law since Heller suggests that courts are willing to, for
example, uphold
.regulations which ban weapons on government property. US v Dorosan, 350
Fed. Appx. 874 (5th Cir. 2009) (upholding defendant's conviction for
bringing a handgun onto post office property);
.regulations which ban the illegal possession of a handgun as a juvenile,
convicted felon. US v Rene, 583 F.3d 8 (1st Cir. 2009) (holding that the
Juvenile Delinquency Act ban of juvenile possession of handguns did not
violate the Second Amendment);
. regulations which require a permit to carry concealed weapon. Kachalsky v
County of Westchester, 701 F.3d 81 (2nd Cir. 2012) (holding that a New York
law preventing individuals from obtaining a license to possess a concealed
firearm in public for general purposes unless the individual showed proper
cause did not violate the Second Amendment.)
From Legal Information INstitute
