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The second amendment to the US Constitution famously says “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.”
A lot of gun owners have strong opinions about what this cryptic sentence means. Some people feel that any gun restrictions at all are unconstitutional: “shall not be infringed.” Other people home in on the “prefatory clause”, and say gun ownership is protected insofar as it is connected with service in a well-regulated militia.
Here are three Supreme Court cases that have addressed some of these questions.
First is an older case, Miller, from 1939. In that case, the Supreme Court decided that ownership of a sawed off shotgun (in violation of the National Firearms Act) was not protected under the 2nd amendment, because a sawed off shotgun has not plausible relation to being in a militia. When I took Con Law, I asked the professor, doesn’t this case provide a precedent that only military style weapons are protected under the 2nd Amendment? He thought that was a plausible analysis). However, no Supreme Court case has even held that any kind of gun at all is protected; in fact if memory serves, in all of these gun cases, the Court has taken pains to specify that ownership of dangerous or unusual weapons is not protected under the 2nd Amendment.
A very important case is Heller (2008), which struck down a Washington DC law that said you could not have operable guns in the home. The majority of the Court held that the Second Amendment does protect one’s right to use guns in self-defense, unconnected to service in a militia.
A very recent case, NY Rifle (2022) held that people do have the right to carry guns outside the home, for self-defense. This does not mean that people do not need permits or training (would this be an infringement?), but that the state cannot routinely deny people gun permits, without a good reason.
Equal Protection in Gun Ownership!
Finally, I want to mention the 14th amendment. While the Bill of Rights in the US Constitution protects our natural rights from infringement by the federal government, it is under the 14th Amendment that many of these protections are extended to the states (we call this “incorporation” in Constitutional Law). The 2nd Amendment has been incorporated against the states under the 14th Amendment (McDonald, in 2010). The 14th amendment, critically, applies equal protection to citizens and people under the United States’ jurisdiction:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This means that no state government, or the federal government, can deny gun rights to people based on their race, ethnicity, nationality, religion, sex, gender, sexual orientation, etc!
While the Supreme Court has interpreted the 2nd amendment to answer certain questions, it leaves many questions unanswered. Just what kinds of guns can people own? What does it take for a government to deny someone the right to carry a gun or have a gun inside the home for self-protection? How can we balance people’s 5th and 14th amendment rights to due process with red flag laws, to protect people and others from dangerous individuals?
These are all questions we at Sparkdog Firearms are looking forward to finding out as more cases come before the Supreme Court. In the meantime we will say we strongly believe in people’s right to bear arms and strongly oppose any discriminatory action by governments that impact diverse people’s rights.