What is the Current Status of the Second Amendment Right to Own a Gun

December 20, 2012

In the wake of the shooting tragedy killing 26 people, including 20 children, at Newtown, Connecticut, a week ago, talk is raging about new laws designed to limit the kinds of weapons people can buy. Also under consideration are laws requiring investigation of gun purchasers' mental stability before guns are sold. Whatever legislation is passed, and it seems that the mood is now to pass some gun control measures, it will ultimately face constitutional challenges in the courts.

What is the current status of the right to bear arms under the second amendment to our constitution? You may remember the Supreme Court's 2008 decision upholding the second amendment's right to bear arms. What you may not remember is that the decision applied only to the right to defend one's own home. The holding was limited to the right of a person to own a gun to defend his castle. And Justice Scalia, arguably the court's most conservative member, clearly stated in the decision that ownership of guns, like other constitutional rights, has limits. He did not further elaborate.

It is likely that the court's next review will be over the issue of whether people have the right to be armed in public. That is, state laws permitting people to carry concealed weapons in public are likely to be before the court. Whether the second amendment confers the right to carry a concealed weapon has not been decided by the Supreme Court.

A recent federal court ruling in Illinois sets the stage for Supreme Court review. That court in Chicago struck down Illinois' law banning concealed weapons. Since that ruling is at odds with the decisions of a number of other federal courts that have mostly upheld state and local gun laws, the Supreme Court is likely to hear the issue and decide the law of the land. The court may be influenced by the emotionally charged atmosphere following the Connecticut massacre.