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Back September 11, 2019

General Guide to Gun Rights the Second Amendment

This blog is not to be construed as legal advice or as a political article, but as an educational general

overview of the Second Amendment of the United States Constitution and how it applies to people physically present in the U.S. and its limitations.

While the Second Amendment has become one of the most contentious issues in American Politics, it is a longstanding protection, and the law of the land in the United States that dates back to several of the 13 original colonies. The Second Amendment’s protection is provided to all persons who are Citizens and Permanent Residents of the U.S. (at the time this blog was written), notwithstanding the race, gender, religion, political affiliation or just about any other status imaginable. However, please be aware that the Second Amendment does not apply to Convicted Felons and the Mentally ill and its protections may be revoked from other individuals who would normally enjoy Second Amendment rights that are subject to Domestic Violence Protection Orders and other legal restraints including, but not limited to incarceration or court orders forbidding those individuals from possessing firearms.

Text of the 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.

Interpretation of the Second Amendment

As you can see, the text of the Second Amendment is vague and ambiguous. However, the U.S. Supreme Court has specified the intent of the Founding Fathers, the origins of the Second Amendment, and a far more specific and less ambiguous interpretation of the Second Amendment and its limitations.

Generally, the U.S. Supreme Court’s Interpretation of the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008) permits the people to keep and bear arms that are commonly owned by the people for lawful purposes such as for permissible self-defense and recreational purposes regardless of whether the people serve in a militia or in the U.S. Armed Forces. The Second Amendment does not in itself provide protection to activities such as but not limited to open and concealed carry outside one’s residence and carrying firearms in schools and government buildings and other restricted locations. It is also presumed by the U.S. Supreme Court that the government may impose conditions and qualifications on the commercial sale of arms and that the government may prohibit the carrying of dangerous and unusual weapons in addition to other permissible regulations. Additionally, as with many sections of the Bill of Rights of the U.S. Constitution, the states may grant greater protections in their laws than those provided by the Second Amendment, but the states may not rescind the protections provided by the Second Amendment. An example of the states granting additional protection in their own laws that extend beyond the Second Amendment are states that permit concealed carry of firearms in public locations. For a more in depth understanding of how the U.S. Supreme Court arrived at its interpretation of the Second Amendment, please read Heller. Further, the ruling in Heller and specifically the Second Amendment was held by the U.S. Supreme Court to extend to state and local governments in McDonald v. City of Chicago, 561 U.S. 742 (2010). Beyond this, little in regards to the Second Amendment has been defined and there may be gray areas of Second Amendment law that could be settled in the future by the U.S. Supreme Court.

This blog is not to be construed as legal advice. We strongly encourage you to seek the advice of a Licensed Constitutional Law Attorney in your jurisdiction if you encounter legal issues involving Gun Rights and the Second Amendment. Second Amendment Law and Constitutional Law in general can be arduous and cumbersome. Legal issues involving these areas of law require the utmost level of care, skill, knowledge and informed judgment. To schedule a consultation today regarding the Second Amendment and other Constitutional Law issues, contact Biazzo & Panchenko Law, PLLC.

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