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Miller is subject to two possible interpretations. One, that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias (the defendants in Miller were transporting sawed-off shotguns). The second--broader--view of Miller is that the Amendment guarantees no rights to individuals at all. There is also a second open question concerning the Second Amendment: If it does create a right of individuals to own firearms, is the right enforceable against state regulation as well as against federal regulation? In 1876, the Supreme Court said the right--if it existed--was enforceable only against the federal government, but there's been a wholesale incorporation of Bill of Rights provisions into the 14th Amendment since then, and it's not clear that the Court would come to the same conclusion today. In Quilici vs Morton Grove, a case involving a challenge to a Chicago suburb's ban on the possession of handguns, the Seventh Circuit concluded that the right was not enforceable against the states. In 2007, the
D. C. Court of Appeals, in Parker v
District of Columbia, struck down a Washington, D.C. ban on
individuals having handguns in their homes. With its 2 to 1
ruling, the D. C. Circuit became the nation's second court of appeals
(following the Fifth Circuit) to find that the Second Amendment
creates an individual right to own firearms. Most other circuits
courts had concluded the Second Amendment protects only the rights of
states to maintain militias. The split in the circuits suggested
that the time was finally be ripe for another Supreme Court decision on
the issue. The Supreme Court granted cert in the fall of 2007
(the case has been re-named District of Columbia v Heller) and a
decision is expected in June 2008. Cases
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The Second Amendment 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.
Questions 2. If the Second Amendment does create an individual right, how broad is the right? Does it include the right to possess arms that would be useful to a militia today--hand grenades, rocket launchers, etc.? Or does it create only a right to possess arms that would have been used by a militia in 1791--muskets? Or is the right answer somewhere between these extremes? 3. The Second Amendment speaks of the right to bear arms. Does this suggest, for example, that there is no right to possess weapons that could not be carried, such as cannons? 4. If the underlying concern that inspired the Second Amendment--fear of an abusive federal government oppressing states and their citizens--no longer exists, should that affect how we interpret the Amendment? 5. What is the argument for choosing what provisions of the Bill of Rights we will give full effect? 6. If the test for whether a provision of the Bill of Rights is incorporated into the 14th Amendment is whether the right in question is "fundamental to the American scheme of justice" what conclusion should we come to with respect to the right to keep and bear arms? 7. Which of the following regulations of firearms is constitutional?: (1) an age restriction, (2) a four-day waiting period for purchase of a firearm, (3) a ban on the carrying of concealed weapons. ![]() The Morton Grove trustees that voted for gun ban Links Sources on the Second Amendment (UCLA Law) Second Amendment Foundation Citizen's Committee for the Right to Keep Arms National Rifle Association Handgun Control, Inc. |