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Thursday, January 9, 2014

Limitations on Second Amendment Rights

At the Constitution Daily Blog of the National Constitution Center, Lyle Denniston writes about two opposing views on the Second Amendment.  The quotes exemplifying these views are:
"The fact is, all constitutional rights are regulated, always have been, and need to be.” 
“We are locked in a struggle with powerful forces in this country who will do anything to destroy the Second Amendment. The time for ceding some rational points is gone.” 
In the post, Denniston describes the state of Second Amendment law.  The Supreme Court in District of Columbia v. Heller held that the Second Amendment confers a right to bear arms on individuals that and that this right limits the Federal Government.  In McDonald v. City of Chicago, the Court said that this right constrains state governments as well as the federal government.

Denniston points out that many constitutional rights can be restricted or limited, even if they seem explicitly absolute.  For example, the First Amendment states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." but laws that restrict speech have been upheld as constitutional.  Denniston then notes that the Supreme Court has not taken up any Second Amendment cases since McDonald, despite many petitions for the Court to clarify additional questions on the constitutionality of firearm regulations.

All of this looks fine.  But then Denniston reaches this conclusion:

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes. 
Gun control will go on being an issue in politics and in government, at all levels, but the constitutional rules that could shape how for [sic] government may go remain unmade.
While the Supreme Court has not revisited the limits of Second Amendment rights, the Court in Heller indicated that "longstanding" regulations on firearms would not be threatened by the ruling.  State and federal courts at the trial and appellate level have upheld regulations on firearms that prohibit possession of firearms by felons (even under "strict scrutiny" review) and the purchasing of firearms by minors.

So while there may be no Supreme Court precedent defining the limits of the Second Amendment, it is not correct to say that the rules are "unmade," because they are being made in the lower courts.  And with many courts applying an "intermediate scrutiny" approach to the Second Amendment (requiring a substantial governmental interest to which the law is substantially related), it is fairly clear what standard typically applies in many Second Amendment cases (even if the wording of the standard allows for arguments either way).

Returning to the two quotes that Denniston is discussing, it would seem that the first quote is closest to the mark when it comes to the Second Amendment.  Almost all constitutional rights may be subjected to limitations (with the possible exception of the Thirteenth Amendment's prohibition on slavery).  The Second Amendment is no different, as the right to bear arms can be and has been limited by both state and federal laws.

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