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.