IABA Primer on the 2nd Amendment

IABA Second Amendment Primer

Introduction

The debate over gun control and the scope and applicability of the Second Amendment has undergone periods of intense debate in recent years, in the wake of the mass murders at Columbine High School, and Virginia Tech University, along with other more recent mass shootings at a movie theater in Aurora, Colorado and involving U.S. Congresswoman Gabrielle Giffords and others, the Obama administration, Congress, lobbyists and the people have become re-engaged in the debate over U.S. gun control policy, with little changes.

The latest horrific shooting spree at Sandy Hook Elementary School in Newtown, Connecticut, however, has reawakened the firearm debate to a near fevered pitch.  What follows is a brief primer on the Second Amendment, the landmark U.S. Supreme Court decisions interpreting the Second Amendment to the U.S. Constitution, and the current state of gun control activities in the United States.

Legal Background and History

The Second Amendment to the United States Constitution, which protects the right of people to keep and bear arms, was adopted on December 15, 1791 as part of the United States Bill of Rights.  It reads:

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.

The legal debate over the Second Amendment is based on whether the constitutional provision grants each American an individual right to own a gun. In 2008 and 2010, the U.S. Supreme Court issued two landmark decisions concerning the Second Amendment.  In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual’s right to possess a firearm, unconnected to service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home and within federal enclaves. In McDonald v. Chicago, 561 U.S. 3025 (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.

District of Columbia v. Heller

In Heller, a divided Court ruled as unconstitutional the District of Columbia’s outright ban on private handgun possession, reasoning that the Second Amendment provides an individual the right to own a firearm that is “typically possessed by law-abiding citizens for lawful purposes.” District of Columbia v. Heller, 554, 625 U.S. 570 (2008).  In Heller, a D.C. policeman applied to register a handgun he wished to keep at home, but the District refused. He filed suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the handgun licensing requirement insofar as it prohibited carrying an unlicensed firearm in the home, and the trigger-lock requirement of the D.C. law insofar as it prohibited the use of functional firearms in the home. The District Court dismissed the suit, but the D.C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms, and that the city’s total ban on handguns—as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense—violated that right.  The Supreme Court affirmed.

McDonald v. Chicago

Heller was followed in 2010 by McDonald v. Chicago, which applied the Second Amendment’s individual right to bear arms to state governments.  In McDonald, the city of Chicago and the village of Oak Park, a Chicago suburb, had promulgated laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violated the Second and Fourteenth Amendments. Rejecting petitioners’ argument that the ordinances were unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed.  The Supreme Court reversed the Seventh Circuit.

Current Gun Control Laws and Proposed Measures

 Several federal gun control laws have been passed over the years. They include the Gun Free School Zones Act of 1990, the Brady Handgun Violence Prevention Act of 1993, and the now expired Federal Assault Weapons ban (1994-2004).  Current federal law restricts individuals from possessing firearms in school zones (Gun Free School Zones Act).  Moreover, federal law also requires background checks before gun purchases (Brady Handgun Violence Prevention Act).  There are exceptions to the background check requirement, and state and local officials may choose to conduct or not conduct these background checks.  Printz v. United States, 521 U.S. 898 (1997)  In the wake of the recent Newtown tragedy, the Obama administration has committed to proposing various regulations to address the issue of gun violence in the U.S.  On January 16, 2013, President Obama signed 23 executive orders to battle gun violence.  The President also called on Congress to pass legislation that will include universal background checks, limits on the capacity of ammunition magazines, and a renewed ban on assault weapons.

Conclusion

The history of gun control legislation in the U.S. is a long and complicated one.  But given the fact that January 22, 2013, marked the fifth school shooting in 2013, we may see some of the most comprehensive legislation on guns in over a decade.  Stay tuned.