Mountain Law: Punctuation and the Second Amendment
January 30, 2013
In my most recent column, I wrote about potential ways of interpreting the Second Amendment and described the current state of the law that, subject to certain restrictions, the Second Amendment does create an individual right to own guns unconnected to serving in a state militia. This article further explores the current law.
Preliminarily, my previous column quoted the “three comma” version of the Second Amendment as follows: “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.” It turns out there are various arguably “official” versions of the amendment containing anywhere from one to four commas. This apparently had to do with what particular scribe copied in longhand the version at issue. Most experts have concluded that comma usage was not uniform at the time the Second Amendment was ratified and the commas do not change the meaning of the words. (These same experts also generally ascribe no significance to the fact that the amendment capitalizes the words “militia” and “state,” but not “people”). I will continue to use the quoted version as it appears in my law school textbook.
Before 2008, the Supreme Court had not considered a Second Amendment case in more than 70 years. The controlling case called United States v. Miller, from 1939, upheld a federal law that prohibited carrying unlicensed firearms across state lines. The defendants in the case were charged with carrying a sawed-off and unregistered shotgun from Oklahoma to Arkansas. The decision focused on the purpose of a militia and concluded that a sawed-off shotgun was not “ordinary military equipment” and did not “contribute to the common defense.” Miller was generally interpreted as limiting an individual right to possess and use guns except as part of a state militia.
Then came District of Columbia v. Heller in 2008, which concerned a law that restricted gun use even in the home. The Supreme Court found, for the first time, that individuals have a right to possess and use guns even if they are not serving in a formal militia, so long as such use is for traditional lawful purposes (such as self-defense within the home). The court interpreted Miller not as limiting the right to keep and bear arms for militia purposes, but rather limiting the type of weapon to which the right applies to those used by the militia – i.e. those in common use for lawful purposes. The court found that the total ban on handguns at issue unlawfully prohibited an entire class of guns that Americans overwhelmingly choose for the lawful purpose of self-defense. As I described in my earlier column, the decision went on to affirm the legality of various traditional restrictions on gun rights and left open the possibility for still others.
Despite predictions to the contrary, Heller has not resulted in many gun laws being overturned, perhaps because many laws fall within the recognized restrictions. Heller left open the question whether the individual right to possess and use guns extends outside the home. It also left open for future determination what specific types of guns may be individually owned. Most legal experts agree that bans on machine guns and sawed-off shotguns are permissible even after Heller. Universal background checks, tighter requirements for mental health reporting and banning high-capacity ammunition clips also appear OK legally. It happens that those are the sorts of restrictions being proposed in response to the Newtown shootings, meaning politics will likely play a greater role in deciding any new gun control measures than will the
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, emphasizing real estate, business, and litigation. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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