The 2nd Amendment

District of Columbia v. Heller and the effect on California Gun Control Laws

The 2nd Amendment of the United States Constitution reads:  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.

So what exactly does that mean?  What is the right to bear arms?  The meaning of this sentence is not self-evident.  To understand what the right to bear arms means, we need to look at the few decisions of the Supreme Court.  In the 19th Century, the Supreme Court ruled that the Second Amendment does not bar state regulation of firearms.  This gave the states the right to regulate guns as they saw fit (United States v. Cruikshank).  Then, in the case ofUnited States v. Miller, the Supreme Court interpreted the 2ndAmendment as preserving the authority of the states to maintain militias. This was generally the rule, so the states were given free reign when it came to gun controls.

In the case of District of Columbia v. Heller, the Supreme Court ruled in a 5-4 majority vote that the Second Amendment confers an individual right to keep and bear arms, and that the D.C. provisions banning handguns and requiring firearms in the home disassembled or locked violate this right.  The Court stated that the right to bear arms is subject to regulation, such as concealed weapons prohibitions, limits on felons and the mentally ill, law forbidding the carrying of weapons in certain locations, laws imposing conditions on commercial sales, and prohibitions on carrying dangerous or unusual weapons.  The Court also stated that this was not an exhaustive list of regulatory measures that would be presumptively permissible under the Second Amendment.

In summary, although states can impose gun control in general, it cannot take an action that would infringe on the right of an individual to bear arms.

So what does this mean for California and its Gun Control Laws?  As of yet, looking at the California Gun Control Laws and applying it to the standard set by the Supreme Court, it appears that California legislation on gun control is in compliance.  There are no requirements that firearms be disassembled in the home, or locked for that matter.  While a gun box is required, and ammunition must be kept separate from the gun (i.e. unloaded), there is no requirement to “lock the gun,” with a device and such.

The ruling does hamper the recent attempts that the California legislature were taking to amend California Gun Control Laws to be more stringent before the 2008 case.  California, as well as many other states, will have to keep in mind the ruling of the Supreme Court in Heller, as any form of regulation that is too strict can be ruled unconstitutional on the grounds that the regulation has the effect of violating the right for the individual to bear arms.

It is not clear what regulations are considered to violate the rights of an individual to bear arms, and what regulations are permissible aside from the examples the United Supreme Courts gave.  There are no factors or tests utilized to access such a situation.  As time goes on and more litigation occurs as a result of this ruling, it will become more clear on what regulations are permissible, and which are not.

In the meantime, it does not appear that there will be any changes made to the California Gun Control Laws as they exist today.  The law as it is written complies with the permissible regulations mentioned by the United States Supreme Court.

Regardless of if you are pro-gun or pro-gun control, what is clear is that the war is not over, but the battle has been won by the pro-gun groups.  The United States Supreme Court has recognized that the 2nd Amendment right to bear arms applies to individuals.  This will have the effect of limiting what states can regulate and cannot regulate in the future.  All gun regulations will now have to pass constitutional muster.  No longer can states regulate guns however yhey want to regulate it.

As shootings and gun violence in America become more wide spread. It will be interesting to see how the states will regulate guns, and what actions the federal government will take to in its effort to regulate guns, and how the Supreme Court will rule on these actions.  The battle is being waged.  It will be quite some time before this issue is resolved and put to bed.  It may take decades, but most likely, it will take a century, as history shows.

–By Philip Young Sik Cho

Law Offices of Jeffery Rubenstein

Associate Attorney

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