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Court Rulings on Firearms - Second Amendment Interpretations

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Some legal scholars assert that the courts have decided fewer cases based upon the Second Amendment "right of the people to keep and bear arms" than any other constitutional amendment. For many years, when deciding cases based on any guarantee granted by the Bill of Rights, including the Second Amendment, the courts relied on the 1833 U.S. Supreme Court decision in Baron v. Mayor of Baltimore (32 U.S. 243, 1833). In that case the Court ruled that the Bill of Rights does not apply to or restrict the states. This meant that the Bill of Rights was a limitation only on the federal government; its protections only applied to federal laws.

Under this interpretation, for example, a state did not have to allow free speech (a First Amendment right) unless the state's constitution guaranteed that right. If the state constitution did not guarantee the right of free speech, state or local authorities could arrest a person indulging in free speech, but federal law-enforcement officials could not, because they were restricted by the Bill of Rights. State constitutions—rather than the Second Amendment of the U.S. Constitution—have decided most gun cases. This situation changed during the years of Chief Justice Earl Warren's Court (1953–69), when most of the guarantees of the Bill of Rights were held to apply to the states through the Fourteenth Amendment (1868; "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens").

Gun rights advocates interpret the Second Amendment as a guarantee to individuals of the right to keep and bear arms without any government interference whatsoever. Researcher David B. Kopel of the New York University School of Law concluded that the Supreme Court has generally agreed with this interpretation. In "The Supreme Court's Thirty-Five Other Second Amendment Cases" (St. Louis University Public Law Review, vol. 18, no. 99, 1999) he wrote:

[T]he question whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments.

Opponents of this individual rights interpretation say the right to bear arms is a collective right that pertains to militias. The American Bar Association, in an essay on its Web site (http://www.abanet.org/gunviol/secondamend.html%20[accessed January 26, 2005]), takes the position that when the Supreme Court and other federal courts have addressed the Second Amendment, they

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 [sic] 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.

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