Nahmod Law

This is the tenth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon. These posts are not intended to provide legal advice and should not be used for that purpose.

(Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process, as well as state action and, most recently, the free speech rights of public employees).

Overview

The Second Amendment reads as follows: “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 abridged.”

While most legal scholars previously thought, consistent with then-existing precedent, that the Second Amendment dealt solely with the military, the Supreme Court nevertheless held in 2008 in the blockbuster Heller case that the Second Amendment is not limited to the military context.  Rather, it protects an individual’s right to possess a handgun in the home for self-defense. District of Columbia v. Heller, 554 U.S. 570 (2008)(5-4 decision, with the lengthy majority opinion written by Justice Scalia).

Significantly, Heller (and Justice Scalia) expressly did not call into question: (1) prohibitions against the possession of firearms by felons and the mentally deficient; (2) prohibitions against the possession of “unusual” firearms such as machine guns; and (3) prohibitions against carrying firearms in schools and government buildings. In addition, Heller made clear that government regulation of commercial sales and purchases of firearms is not necessarily unconstitutional, and that the same is true for licensing requirements for individuals.

What Heller did not address is whether and to what extent Second Amendment protection extends beyond the home and covers open and concealed carry. Namely, is the self-defense rationale of Heller limited to the home? These questions continue to engage the lower federal courts because the Supreme Court has not addressed them as of this writing. The only post-Heller Supreme Court decision thus far is McDonald, where the Court not surprisingly ruled that the Second Amendment applies to state and local governments as well as to the federal government and the District of Columbia. McDonald v. City of Chicago, 561 U.S. 742 (2010). But it is only a matter of time, now that the Court has a full complement of justices, before the Court considers these questions.

Some Basic Principles Everyone Should Know (Not Just About the Second Amendment)

1. Constitutional rights run against government: private persons cannot violate any of your constitutional rights, including the Second Amendment. (The only possible exception is your Thirteenth Amendment right not to be subject to involuntary servitude). But if a police officer were to arrest you in alleged violation of your Second Amendment rights, or if a government were to deny you a firearm license, that’s different.

2. Constitutional rights are not absolute, whether it’s the Second Amendment, the First Amendment or any of the other individual constitutional rights. All are governed by the appropriate balancing test articulated by the Supreme Court for different constitutional rights. It is not yet clear what the test is for alleged Second Amendment violations.

3. The Second Amendment means whatever the Supreme Court says it means. The Constitution is the Supreme Law of the Land and what is provisions mean is ultimately for the Supreme Court to determine through judicial review (unless there is a constitutional amendment).

4. All constitutional rights have costs. This is crucial to keep in mind. The Second Amendment is a good example since firearms can cause harm. The First Amendment is another good example since protected speech can cause harm as well.

5. One last point: constitutionality and wisdom are not the same. Some gun control legislation, for example, might be wise but still unconstitutional. Conversely, some gun control legislation might be unwise but still constitutional. The Second Amendment sets a constitutional floor or minimum. But so long as legislative regulations of firearms comply with this floor, they are subject only to the political process.

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