PERSONAL INJURY Corner
PERSONAL INJURY Corner
GUNS
TED BABBITT
This article is a departure from my usual comments on recent cases . Instead it is a discussion of the U . S . Supreme Court case of District of Columbia v . Heller , 554 U . S . 570 , 128 S . Ct . 2783 , 171 L . Ed . 2d 637 ( 2008 ). While it is unlikely that this discussion will be useful in your practice , it probably will be useful in legal discussions concerning Second Amendment rights in light of the shootings at Parkland and other massacres . It is not intended as a political statement but rather to give Palm Beach County Lawyers more information about questions they may face about this subject . The Second Amendment of the United States states : 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 .
In this case , the District of Columbia passed a law which effectively banned possession of handguns by non-law enforcement officials and required lawfully owned firearms to be kept unloaded , disassembled or locked when not located at a business place or being used for lawful recreational activities .
In a 5-4 decision , the Supreme Court struck down the District of Columbia statute as unconstitutional under the Second Amendment . The Supreme Court majority opinion was written by Justice Scalia who was joined by Justices Roberts , Kennedy , Thomas and Alito . Justices Stevens and Breyer filed separate dissenting opinions and Justice Stevens was joined in his dissent by Breyer , Ginsberg and Souter .
The case came to the Supreme Court after the District Court upheld the District of Columbia law but was reversed by the U . S . Court of Appeals for the District of Columbia by a 2-1 vote which reversed the lower court ruling in Parker v District of Columbia , 478 Fed . 3d 370 ( D . C . Cir . 2007 ). The U . S . Appeals Court found that the District ’ 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 the Second Amendment .
Both the plaintiffs and the District of Columbia petitioned the Supreme Court which accepted jurisdiction .
The Supreme Court ’ s opinion struck down the District of Columbia ’ s law finding that the right to bear arms was not limited to a well-regulated militia and instead included the right of individuals to bear arms for the lawful purpose of self-defense . The handgun ban contained within the District of Columbia law , according to the majority , amounted to a prohibition of an entire class of arms traditionally used by Americans for the lawful purpose of self-defense and that the requirement that firearms be rendered inoperative at all times was unconstitutional because it made those arms unusable for the lawful purpose of self-defense of one ’ s home . The Court specifically held that the Second Amendment does not limit guns only to a militia and that while the Amendment clearly referred in its prefatory clause to a militia its operative clause preserved the right of people to keep and bear arms and thus to have such weapons and carry them not just in a military context .
Most interesting , in light of the current argument about the sale of assault type weapons such as the AR15 which has been used with some frequency in recent massacres including the Parkland shootings , the majority opinion specifically confirms the National Firearm ’ s Acts restrictions on machine guns and at 2815 states … the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes , such as short barreled shotguns .
The majority opinion is careful to explain that the Second Amendment does not give an unlimited right to any kind of weapon . At 2816 , the Court holds Like most rights , the right secured by the Second Amendment is not unlimited . From Blackstone through the 19th-century cases , commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for what purpose . See , e . g ., Sheldon , in 5 Blume 346 ; Rawle 123 ; Pomeroy 152-153 ; Abbott 333 . For example , the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues . See , e . g ., State v . Chandler , 5 La . Ann ., at 498-490 ; Nunn v . State , 1 Ga ., at 251 ; see generally 2 Kent 340 , n 2 ; The American Students ’ Blackstone 84 , n 11 ( G . Chase cd . 1884 ). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill , or laws forbidding the carrying of firearms in sensitive places such As schools and government buildings , Or laws imposing conditions and qualifications on the commercial sale of arms .
We also recognize another important limitation on the right to keep and carry arms . Miller said , as we have explained , that the sorts of weapons protected were those “ in common use at the time .” 307 U . S ., at 179 , 59 S . Ct . 816 , 83 L . Ed . 1206 . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “ dangerous and unusual weapons .”
In a footnote , the Supreme Court opens for interpretation what other limitations Congress or the States could enact by stating : We identify these presumptively regulatory matters only as examples ; our list does not purport to be exhausted . At 2817 .
In the weeks since the Parkland shootings I have heard many people , including myself , argue that the Second Amendment ’ s plain language limits the right to bear arms to a well-regulated militia . The Heller opinion puts an end to that argument but makes it clear that the Second Amendment ’ s right to bear arms is not unlimited and that reasonable regulatory laws can be enacted . Future courts , legislatures and Congress will be faced with the question of just how far those regulations should or can go in interpreting the Second Amendment .
NOTE : BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES , A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION , FREE OF CHARGE , BY CALLING ( 561 ) 684-2500 .