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2nd Amendment

CAN THE GOVERNMENT TAKE AWAY MY GUN?

Second Amendment: 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 2^nd Amendment DOES provide an individual right to bear arms. Since the creation of the Bill of Rights, the Second Amendment to the Constitution has provided for the right to bear arms. For years, some have argued that this amendment didn’t protect the individual’s right, but only the collective “people” through the armed services. However, the Constitution and Bill of Rights repeatedly refer to the "rights" of the people (individuals) and the “powers” of the government, implying that “right of the people” indicates an individual right. [1] Even if it is agreed that the 2^nd Amendment provides an individual right, there is still a debate over whether it is a right protected from any government regulation – or just from the federal government. The founders clearly understood it as a foundational right, but we continue to wait for the courts to come to the same conclusion.

In the final opinion of the U.S. Supreme Court in District of Columbia v. Heller (2008), Justice Antonin Scalia stated, "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."[2]

However, the Court left room for gun laws involving the mentally ill, felons, and sensitive places such as schools and government buildings.[3] Yet, the Court finally ended the debate over whether or not the 2^nd Amendment applies to the individual.

In fact, Justice Scalia held that the Second Amendment simply “codified a pre-existing right,” indicated by the words “shall not be infringed,” implying the right already existed. The Court confirmed that the Second Amendment was preceded by the English Bill of Rights in 1689, which assured, “[t]hat the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” Additionally, Justice Scalia explains that the first clause of the Amendment (regarding a militia) simply gives a timely reason for the second clause (right to keep and bear arms). He expands on this point by saying that, at the time it was written, militias were formed by citizens bringing their own arms from their home to duty. Yet he refutes the claim that modern advancement changes the interpretation of this right.

However, there is a debate over whether the first ten amendments to the U.S. Constitution, known as the Bill of Rights, guarantee rights against state and local governments.

Fourteenth Amendment, Section 1: 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.

Federal courts have used the “privileges and immunities” clause of the Fourteenth Amendment to justify that certain rights are protected from state and local governments as well. Unfortunately, the 2008 case did not clarify this dispute regarding the Second Amendment because the case involved a gun ban in the District of Columbia, which is not a state, and is home to the federal government. The case was decided on the basis that D.C. residents had no defense against the federal government. In the aftermath of the 2008 decision, the Supreme Court has agreed to accept a case that would determine if the Second Amendment applies to the state and local level. 

“Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’… would fail constitutional muster.” ~ Justice Scalia (2008)