WHAT RIGHTS ARE PROTECTED UNDER THE 2ND AMENDMENT?

As a threshold matter, I need to make it clear that I am a lawful gun owner and firm supporter of the 2nd Amendment.  I own guns to hunt, protect myself, and protect my family.  I have guns in my home and office.  I am also the father of two young boys.  Jake, who is seven, attends Carrollton Elementary School.

I am also a lawyer who spends much of my time in courthouses across the west Georgia area.  I am fully aware of the recent shootings at schools and courthouses across the nation.  I am also deeply saddened by the senseless loss of life as a result.

With that being said, I am going to tell you some things that some people will not like to hear.  Oftentimes, the truth has that effect.  Nevertheless, here is a summary are what rights are protected under the 2nd Amendment to the United States Constitution.

The text of the Second Amendment plainly and clearly states:  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.

While gun control advocates and advocates of Constitutional rights have argued over the meaning of the 2nd Amendment for over 200 years, the federal courts have basically turned a blind eye to the issue until fairly recently.

Finally, in 2008, the United States Supreme Court issued what is now the landmark case on the 2nd Amendment in District of Columbia v. Heller.

A few years ago, handgun possession was banned under District of Columbia law. The law prohibited the registration of handguns and made it a crime to carry an unregistered firearm. Furthermore, all lawfully owned firearms had to be kept unloaded and dissembled or bound by a trigger lock unless they are being used for lawful recreational activities or located in a place of business.

Dick Heller was a special police officer in the District of Columbia. The District refused Heller’s application to register a handgun he wished to keep in his home. He filed a lawsuit in the Federal District Court for the District of Columbia on Second Amendment grounds. Heller sought an injunction against enforcement of the bar on handgun registration, the licensing requirement prohibiting the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home.

The case eventually ended up in the United States Supreme Court.  The Court’s opinion, authored by the brilliant Justice Antonin Scalia, found the D.C. law to be unconstitutional and held that:

  • The Second Amendment protects an individual right to possess a firearm      unconnected with service in a militia, and to use that arm for      traditionally lawful purposes, such as self-defense within the home.   

The handgun ban and the trigger-lock requirement (as applied to self-defense) violated the Second Amendment. The total ban on handgun possession in the home amounted to a prohibition on an entire class of arms that Americans overwhelmingly chose for the lawful purpose of self-defense. This prohibition fails constitutional muster under any standard of scrutiny. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock would make it impossible for citizens to use arms for the core lawful purpose of self-defense and is therefore unconstitutional.

However, the Court also held that the 2nd Amendment right is not a right to keep and carry any weapon in any manner and for any purpose. The Court has upheld gun control legislation including prohibitions on concealed weapons and possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.  Each state has vastly different laws governing these prohibitions.

The bottom line is this.  Qualifying Americans have an individual right to keep and bear arms.  That is and will always be true regardless of the debate on gun control measures.  The only way to change this fact would be by the process of passing a Constitutional Amendment repealing the 2nd Amendment.

You will not see this action taken in your lifetime.