OF GUNS AND THE LAW

Congress’ consideration of a gun control law, along with several states passing stricter laws on the topic, has garnered many hours of newscast and probably hundreds of pages of newspaper articles, not to mention an avalanche in the blogosphere.  The words “Second Amendment” are frequently uttered.  Sadly, that does not always correlate with knowledge of the state of constitutional law on the Second Amendment.

That is not very surprising, as Second Amendment law is in flux.  In an effort to help a rational debate, here is what we know about the Right to Bear Arms.

– The right to bear arms is an individual right. (It had previously been thought to likely invoke no more than the right of the states to assemble a militia.  No longer.)

– The right to bear arms is a fundamental individual right, which means it is binding on the states as well as the federal government.

– The right to bear arms is not an absolute right because no right is absolute.  The right to free speech, for example, does not allow someone to yell “fire” in a crowded theater or to defame his neighbor.  Nor is the right to bear arm all-encompassing.

– The right to bear arms protects, at a minimum, the right to keep weapons at home for self-defense.

– The right to bear arms does not prevent the state from forbidding felons or the mentally ill to own, carry, keep, or possess guns.

In between the two, questions abound.  How far beyond self-defense at home does the constitutional right to bear arm extend? Is one constitutionally permitted to ‘bear’ a concealed weapon in public? While many states authorize it, others do not, and the Supreme Court has yet to decide whether it is a constitutionally protected right. Endless gun-related questions are as yet unanswered.