The truth about the 2nd Amendment

West facade of the Supreme Court building in Washington.

by Tom Regan

It’s a pretty common refrain you’ll hear from gun rights activists: The 2nd Amendment gives them the right to own whatever kind of gun they desire and any attempts to place restrictions on ownership, or the size of ammunition clips, or how long you have to wait before you buy a gun, or any kind of a restriction at all, are unconstitutional.

It’s a go-to argument for the guns right movement, and one that is echoed by members of Congress and their pay master, the National Rifle Association. It’s too bad it’s completely bogus.

To get the real story, you need to go back to two Supreme Court cases: Heller vs DC in 2008 and MacDonald vs City of Chicago in 2010.

In 2008, DC had some pretty restrictive laws about handguns, the use of gun locks and keeping them in your home. A group of citizens, of whom Mr. Heller was one, decided to sue the city of DC, arguing that these restrictive bans were anti-2nd Amendment and therefore unconstitutional.

The case went all the way to the Supreme Court, where in 5-4 ruling, the Court held the 2nd Amendment protects an individual’s right to “ possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home.” But since DC was a federal district, the question was whether the 2nd Amendment protections outlined in Heller were guaranteed under the Due Process Clause of the 14th Amendment. This was decided in another 5-4 case, the above-mentioned MacDonald vs The City of Chicago. This ruling “incorporated” the 2nd Amendment.

At first glance, this would seem to back the claims of gun right activists that any restrictions placed on the 2nd Amendment are unconstitutional. Again, this is completely bogus.

In his majority decision in Heller vs DC, Justice Antonin Scalia also wrote that “Like most rights, the Second Amendment right is not unlimited [my emphasis]. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding 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, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (Wikipedia summary)

More important, in the MacDonald vs The City of Chicago, the Supreme Court left this language intact.

Which brings us to today. In fact, it brings us to just yesterday. The Supreme Court passed on taking up a case challenging California’s mandatory 10-day waiting period to buy a gun, even if you had previously purchased a gun. It was the latest case of the Court refusing to hear a challenge to a law restricting gun rights.

These include the refusal in 2015 to hear a challenge to an ordinance in Highland Park, Ill. that banned the sale and possession of semi-automatic rifles. Eight other states have similar laws, none of which the Court has overturned.

In June of 2017, the Court did not take up a challenge to the constitutionality of a San Dingo ordinance about concealed weapons. The 9th Circuit Court ruled that “the 2nd Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”

In a February 2017 ruling, the 4th Circuit Court of Appeals, a much more conservative court, ruled en banc, 10-4, that Maryland’s ban on 45 different kinds of semi-automatic weapons and its limit of 10 rounds on gun magazines were both constitutional and that the 2nd Amendment doesn’t protect “weapons of war.” In November of 2017, the Supreme Court declined to heat the case.

What this tells us is that as far as the current justices are concerned, the matter is settled. It is lawful for people to keep a handgun or a shotgun in their homes for self-protection. The 2nd Amendment protects this right. But states are free to implement restrictions on “weapons of war” or on other aspects of gun rights.

If anyone tells you differently or you hear a politician or NRA official say different, it’s just B.S. Nothing more and nothing less.

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