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Taking “Aim” at the Second Amendment

            The United States Constitution provides the very framework in which our nation is based, providing for the organization of the United States government and the establishment of the relationship between the federal government with the states, citizens, and all people within the United States.

The Second Amendment of the Constitution, which is part of the United States Bill of Rights, protects the right of the people to keep and bear arms.  The extent to which this right applies remains the subject of dispute as courts attempt to balance an individual’s right under the Second Amendment against governmental interests in adopting regulations to restrict gun ownership and control.  The Second Amendment was found to be fully applicable to both state and local governments through the Fourteenth Amendment in McDonald v. City of Chicago.  Thus, there has been a constant battle between gun rights as safeguarded by our Constitutional and the need for public protection and safety.

The right to gun ownership was established in Heller v. District of Columbia, where it was found that individuals have a right to own a gun in self-defense to protect their hearth and home.  However, this right did not provide an unfettered right to gun ownership.  In assessing a core Second Amendment right under the intermediate scrutiny standard, the court in Heller determined that gun registration requirements effectuated the important governmental interest in the public interest of promoting public safety.  Similarly, Heller limited the types of guns that could be owned by individuals to only those that were in common use and typically possessed by law abiding citizens.  Assault weapons and large capacity ammunition feeding devices were found to be “dangerous and unusual” and not to fall within the purview of rights provided under the Second Amendment.

The extent to which the right to carry guns in areas outside of the home remains the subject of dispute where two cert petitions are currently being argued before the Supreme Court.  In Masciandaro v. United States of America, the petitioner was convicted for possessing a loaded gun in the trunk of his car while in a national park area.  In applying the intermediate scrutiny standard, lower courts found that a regulation prohibiting the carrying or possessing of a loaded handgun in a motor vehicle did not violate an individual’s Second Amendment right as there was a substantial government interest in providing a safe environment for persons who visit and make use of the national parks.  In his appeal before the Supreme Court, Masciandaro argues that the Second Amendment right to possess a gun within one’s home should be extended to allow the possession of guns while traveling on public highways.

Similarly, in Williams v. State of Maryland, another case currently before the Supreme Court, purports that the Second Amendment provides for the right of an individual to carry a gun in his backpack while traveling to his house.  Williams was arrested after an officer observed him rifling through his backpack near a wooded area and then hiding his gun in the bushes.  The Court of Appeals of Maryland upheld his conviction on the grounds that Williams lacked standing to challenge the statute and handgun regulations as a violation of the Second Amendment since he failed to file an application to obtain a permit to carry a firearm, even though he attempted to argue that restrictiveness of the state law to obtain a gun permit was the reason he was unable to obtain one.  Nevertheless, it was found that Maryland’s statute prohibiting the wearing, carrying, or transporting a handgun, without a permit and outside of one’s home fell outside the scope of the protections afforded under the Second Amendment.

The Constitution provides for the very framework in which our nation is founded.  It provides the groundwork for the rights that we enjoy today and is the catalyst which has shaped our nation.  Yet, the rights entailed in the Constitution have not been deemed to be an absolute right.  Whether the Supreme Court will recognize and extend Second Amendment rights to protect the right to carry firearms outside of one’s home remains to be seen.

By Theodore Y. Choi, Esquire and published in Upon Further Review on September 13, 2011.

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