imported post
As part of a comprehensive policy position adopted in 1994, the ABA committed itself to work to better inform the public and lawmakers through a sustained educational campaign regarding the true import of the Second Amendment. Opponents of firearms control legislation have relied upon the Second Amendment's guarantee of "the right to bear arms." The Second Amendment, in its entirety, 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."
The United States Supreme Court and lower federal courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual's right to keep or carry firearms. The argument that the Second Amendment prohibits all State or Federal regulation of citizen's ownership of firearms has no validity whatsoever.
The controversy over the meaning of the Second Amendment exists only in the public debate over gun control. Few issues have been more distorted and cluttered by misinformation than this one. There is no confusion in the law itself. The strictest gun control laws in the nation have been upheld against Second Amendment challenge, including local bans on handguns. The Supreme Court enunciated in
United States v. Miller, 307 U.S. 174 (1939) what, nearly seventy years later, remains clearly the law of this country -- that the scope of the people's right to bear arms is limited by the introductory phrase of the Second Amendment regarding the necessity of a "well regulated militia" for the "security of a free State." In
Miller, the Court held that the "obvious purpose" of the Amendment was "to assure the continuation and render possible the effectiveness of..." the state militias and cautioned that the Amendment "must be interpreted and applied with that end in view."
Since today's "well regulated militia" does not use privately owned firearms, courts since
Miller have unanimously held that regulation of such guns does not offend the Second Amendment. The Supreme Court has twice reaffirmed its view of the Second Amendment as expressed in
Miller. In
Burton v. Sills, 394 U.S. 812 (1968), the Court dismissed a gun owner's appeal, for want of a substantial federal question, of a New Jersey Supreme Court holding that the Second Amendment permits regulation of firearms "so long as the regulation does not impair the active, organized militias of the states." Most recently, in
Lewis v. United States, 445 U.S. 55 (1980), the Court held that legislative restrictions on the use of firearms do not - for purposes of equal protection analysis - "trench upon any constitutionally protected liberties."
Until recently the lower federal courts had uniformly followed the interpretation of the Supreme Court. No legislation regulating the private ownership of firearms has been struck down in our nation's history on Second Amendment grounds. However, two recent federal court of appeals rulings have found an individual right in the Second Amendment.
One of these cases,
District of Columbia and Adrian M. Fenty, Mayor v. Heller has been accepted for review by the U.S. Supreme Court in its current term. The
Heller case is a review of
Parker et. al. v. District of Columbia, 478 F. 3d 370 (D.C. Cir. 2007) in which the United States Court of Appeals for the District of Columbia Circuit, held that the appellants have an individual right to bear arms that was violated by the District of Columbia's law banning registration of handguns.The
Heller decision will be the first district consideration of the question of whether the Second Amendmendment grants an individual right to bear arms in nearly 70 years.
