The Second Amendment: What Are the Limits on the Right to …

The meaning and scope of the Second Amendment has long been one of the most hotly contested constitutional issues in the United States. In 2008, the U.S. Supreme Court ruled that the amendment protects the rights of individuals to have and use guns for legal purposes. At the same time, however, the Court clearly said that the Second Amendment right isnt unlimited. Since that decision, other courts in the country have upheld mostbut not allfederal, state, and local gun control laws.

The long-running argument over the Second Amendment largely stems from its language, especially at the beginning: 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. For decades, many scholars and courts interpreted the amendment as preserving states authority to keep militias, which would mean that the right to have firearms was linked to militia service. But in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court opted for a broader interpretation, finding that the Second Amendment gave individuals a right to have gunsunconnected to any militia serviceand to use them for traditionally legal purposes like self-defense.

The Supreme Court said that the law involved in Heller was unconstitutional because it essentially banned all handgunsthe most popular type of gun Americans choose for the core lawful purpose of self-defense. It also kept people from using their guns to defend their families and property by requiring them to keep all firearms trigger-locked or dissembled, even in the home.

Like most constitutional rights, the Second Amendment rights is not unlimited.

What about other kinds of guns and other reasons for having them? Like most constitutional rights, the Heller Court explained, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. In the years since that decision, theres been a flood of legal challenges to federal and state gun control laws. According to one study, in 94 percent of those cases, courts have found that reasonable gun regulations didnt violate the Second Amendment. Theyve mostly relied on the Heller Courts explanation that its ruling shouldnt cast doubt on several longstanding gun restrictions, including bans on gun ownership by certain individuals (like felons), prohibitions on some types of dangerous and unusual weapons, limits on carrying firearms in certain public places, and requirements for gun sales. Although federal law covers some of these restrictions, most gun control is a patchwork of state and local laws and regulations. That means it can be wildly different from place to place.

Federal law outlaws the possession of firearms or ammunition by several categories of people, including:

(18 U.S.C. 922(g).)

Many states prohibit or restrict gun possession by other groups of people, such as stalkers and people subject to other kinds of restraining orders, minors, juvenile offenders, and those convicted of alcohol- and/or drug-related crimes.

Several states also allow courts to order some people to give up their guns temporarily if they pose an immediate risk to themselves or others (under so-called "red flag laws").

Under federal law, its illegal for civilians to have fully automatic weapons (referred to as machine guns in 18 U.S.C. 922(l)). In a rule that became effective in March 2019, the federal government outlawed "bump stock" devices (which attach to semiautomatic weapons to produce automatic firing with one pull of the trigger) by defining them as machine guns for purposes of federal law (27 C.F.R. 447.11).

Another federal law that banned assault weapons (semiautomatic firearms with certain features) expired in 2004, and attempts to renew it have failed so far.

Still, a handful of states and local governmentsincluding California, New Jersey, and New Yorkhave their own prohibitions or restrictions on assault weapons that have withstood court challenges. And although the Heller Court ruled out blanket bans on handguns, many states regulate handguns by requiring permits to buy them.

As the Supreme Court recognized in Heller, guns have traditionally been prohibited or restricted in certain public places under federal, state, and local laws. These sensitive places include schools, government buildings and courtrooms, public transit facilities, airports, and polling stations.

A U.S. appellate court has held that the Second Amendment doesnt protect carrying a concealed weapon in public (Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013)). Most states require a concealed-carry permit, but the conditions vary a lot from state to state. The strictest laws allow authorities to deny a permit when the applicant doesnt have a good moral character or a good reason for carrying a gun in public. The most lenient require authorities to issue the permit to anyone who applies, with little or no discretion. Nearly all states restrict concealed weapons in some places, such as bars, hospitals, and public sporting events. But several states allow concealed weapons on public college campuses, under legislation or state court rulings that overturned longtime bans.

Finally, some states have open carry laws that ban or set conditions on openly carrying certain types of guns in public or in private cars.

Licensed gun dealers have to meet several requirements under federal law, including performing background checks, keeping records of sales, and reporting multiple sales of handguns to the same person (18 U.S.C. 923). But those requirements dont apply to private sellers, including those at gun shows. Some states have stronger laws, and a few require licensing for the sale of all guns.

If you believe that a local law or regulation infringes on your Second Amendment rights as a gun owner, you might want to speak with a civil rights attorney about your options for challenging the restriction. And if youve been charged with a crime related to owning, carrying, or using a gun, you should strongly consider consulting with a criminal defense lawyer. The circumstances in each case are unique, and the laws vary in different states and localities. An attorney whos experienced in this area can explain how the relevant laws apply in your situation and what defenses you might have.

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The Second Amendment: What Are the Limits on the Right to ...