A Quick Primer on Gun Rights In America

A quick primer for all who want to better understand what “gun rights” in America mean:

What Does The Second Amendment Protect?

The “core” right recognized by the U.S. Supreme Court in District of Columbia v. Heller was more modest than most people believe. In that case, the Court struck down a District of Columbia law that banned all firearms and instead, help that an individual right to “bear arms” not only applied to the maintenance of a militia but to “self-defense and hunting[1].”

The Second Amendment Does Not Apply To Certain Weapons, Laws Or Regulations

In that same case, the Supreme Court held that the Second Amendment does not guarantee your right to possess short-barreled shotguns[2], machine guns[3] or “dangers and unusual weapons[4].”

Laws prohibiting the carrying of concealed weapons, possession of weapons by the mentally ill and felons and carrying otherwise legal firearms in “sensitive places” such as schools and government buildings, have also been found to be outside the scope of the Second Amendment and do not implicate the Second Amendment[5]. 

In other words, entire segments of the population can be prohibited from owning weapons (felons and the mentally ill), certain weapons can be banned (short barrel shotguns, machine guns, and “dangerous and unusual weapons”) and laws can be passed that ban the concealed carrying of otherwise legal weapons and their presence in “sensitive places” without even implicating the Second Amendment “right to bear arms.”

The Second Amendment Is Not Absolute

While the Supreme Court did find that there is an individual right to “bear arms,” not only does that not guarantee your right to tote an Uzi, but, like all other Constitutional rights, the Second Amendment is subject to permissible regulation.  In the wake of the Supreme Court’s decision in Heller, a two-part test has been crafted whereby courts determine whether a law or regulation violates the Second Amendment. First, the court must determine whether the Second Amendment is infringed. If it is not (as would be the case in areas discussed above), the examination ends. If the Second Amendment is implicated (as it would be, if a state banned the possession of all firearms), the level of scrutiny courts apply is a shifting target depending on the purported infringement of the right to bear arms.  

Where the law or regulation in question directly impacts the limited gun ownership right upheld in Heller – “the right to possess firearms for defense of hearth and home” – the so-called “core” right recognized in that case[6], “strict scrutiny,” the highest level of scrutiny applied by courts, is used[7]. For laws that do not impinge on that “core” right, courts apply “intermediate scrutiny[8]” in assessing whether “the nature of the conduct being regulated and the degree to which the challenged law burdens that right” violates the Second Amendment[9]. Put another way, “a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify[10].”(emphasis added).

Can You Provide Examples Of Laws Or Regulations That Have Been Upheld Under The Second Amendment?

Sure. After the Supreme Court struck down D.C.’s full firearms ban in Heller, the D.C. Council passed a new law that, among other things, banned AR-15 assault weapons. The same litigant, Mr. Heller, challenged this law and this time, he lost. The D.C. Circuit Court of Appeals held that the AR-15, which is essentially the civilian version of the military’s M-16, could be banned because assault weapons disproportionately account for mass murder and the murder of police officers. Based on that fact, the Court reasoned that banning their possession in the District of Columbia was an appropriate means to achieve the acknowledged important governmental interest in public safety[11].  Another aspect of the law that banned large capacity ammunition magazines was also upheld. Here, the Court deferred to studies showing that the use of large capacity weapons result in more crimes where people are injured by gunfire, more shots fired and more wounds per victim than weapons without such magazines and that even in self-defense situations, a large magazine encourages a person to fire the full magazine, increasing the chances of innocent bystanders being hit or put in danger.  The Court found these reasons compelling and appropriate to help D.C. achieve its stated objective of crime control and public safety[12]. 

Enough With The Legalese Smart Guy, What’s The Bottom Line?

Like any public policy matter, it is important to get/be educated. An assault weapons ban? One that covers machine guns[13] would not even implicate the Second Amendment. One that included semi-automatic “assault” weapons would probably pass constitutional muster[14]. At least one federal court of appeals has upheld a ban on large capacity magazines[15] and others have upheld regulations on gun possession by a person convicted of domestic violence[16] and an outright ban on .22 caliber short-barreled rifles[17]. While it is important to note that case law differs among the federal circuits, the idea that the Second Amendment is inviolate and that sensible gun control laws cannot be passed is simply untrue. What it takes, like anything else in Washington, D.C., is political courage – something that has been in short supply in this area for a long time.

*Note: This post is taken from a longer essay I wrote last year:  http://scarylawyerguy.blogspot.com/2011/11/gun-rights-are-new-abortion-rights.html

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[1]   District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Self-defense was noted to be protection of “hearth and home.”

[2]   Id. at 625, citing U.S. v. Miller, 307 U.S. 174 (1939).

[3]   U.S. v. Fincher, 538 F. 3d 868, 873-74 (8^th Cir. 2008), cert denied, 129 S. Ct. 1369 (2009).

[4]   D.C. v. Heller, supra.

[5]   Id. at 626-27. See also, U.S. v. Marzzarella, 614 F. 3d 85, 91 (3rd Cir. 2010).

[6]   Heller v. U.S., 2011 U.S. App. LEXIS 20130  at *88.  See also, Heller 554 U.S. at 628,

[7]  To pass muster under strict scrutiny, a law must be narrowly tailored to meet a compelling governmental interest.

[8]  Under intermediate scrutiny, a law will not be found unconstitutional provided there is an important governmental interest being advanced and the law in question is substantially related to the achievement of that interest

[9]    Id. at *30, citing U.S. v. Chester, 628 F. 3d 673, 682 (4^th Cir. 2010).

[10]   Id. at *31 (internal citation omitted).

[11]   Id. at *49-50.

[12]   Id. at *51.

[13]   i.e., fully automatic weapons where one pull of the trigger releases multiple rounds of ammunition.  These were banned, along with semi-automatic weapons, in 1994, but that federal law lapsed in 2004.  See, http://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban.

[14]   The D.C. Circuit Court of Appeals found that even if D.C.’s ban on AR-15s was subject to strict scrutiny, it would still be upheld. See, Heller v. U.S., 2011 U.S. App. LEXIS at *99.

[15]   Heller v. U.S., supra.

[16]   U.S. v. Smith, 742 F. Supp. 2d 853, 864-65 (S.D.W.V. 2011).

[17]   U.S. v. Gonzales, 2011 U.S. Dist. LEXIS 127121, *21-27 (D. Utah 2011).