Will Citizens Still Be Entitled to “Bear Arms” Under the Second Amendment?

The media has been swarming with the recent news of possibly amending the Second Amendment to the United States Constitution to be in favor of gun control.  In particular, a former member of the U.S. Supreme Court, John Paul Stevens, has proposed amending the Second Amendment.

As it stands now, the Second Amendment 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.”  Simply put, it gives citizens the right to own guns.

However, is it time to change the long-standing constitutional interpretation of the Second Amendment?

Former U.S Supreme Court Judge Stevens believes that the authors of the Second Amendment were primarily concerned about the threat that a national standing army posed to the sovereignty of the states.  Therefore, the Second Amendment should be amended to read:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.

While Judge Stevens may be ready for such an amendment, the United States may not be ready for such.  Recently, in 2008, Judge Stevens was on the losing end of a 5-4 decision in District of Columbia v. Heller, 544 U.S. 570 (2008), when the Supreme Court decided whether the District of Columbia’s prohibition on the possession of handguns violated the Second Amendment.  The Court did an extremely thorough analysis of how the Second Amendment should be interpreted.  The Court discussed the Drafters intent, the Court looked at Pre-Civil War case law, Post-Civil War legislation and various other factors before coming to a decision.  The Court ruled that while there are problems associated with handgun violence, the absolute prohibition of handguns is unconstitutional.  Id. at 636.  A state (the District of Columbia in this case) may impose measures regulating handguns but a complete prohibition is not what the Second Amendment calls for. Id. 

The decision in District of Columbia v. Heller was recently brought up in the Commonwealth Court of Pennsylvania.  In Caba v. Weaknecht, 64 A.2d 39 (Pa. Cmwlth. 2013), the Commonwealth Court was addressed with the issue of whether Section 6109 of the Uniform Firearms Act (“Act”), 18 Pa. C.S.A §6101 et seq., violates the Second Amendment.  The Act specifically requires an individual to obtain a license to carry a concealed firearm.  18 Pa. C.S.A. §6109.  The Commonwealth Court looked to Morley v. City of Philadelphia Licenses & Inspections Unit, 844 A.2d. 637, 640 (Pa. Cmwlth. 2004) in determining whether the Act violated the Second Amendment. The Court in Morley ruled that, “although the right to bear arms is a constitutional right, it is not unlimited, and restrictions are a proper exercise of police power if they are intended to protect society.” Id. at 641.  Such ruling was later affirmed in Perry v. State Civil Serv. Comm’n, 38 A.2d 942, 955 (Pa. Cmwlth. 2011)(finding that although the right to bear arms enjoys constitutional protection, it is not beyond regulation).

The Court in Caba looked at the rulings from Heller, Morley and Perry and ruled that, “although the United States Supreme Court has recognized that the right to bear arms protected by the Second Amendment is a fundamental right, it has also expressly recognized that laws limiting/prohibiting the ability to carry a concealed weapon are presumptively valid.  Caba, 64 A.2d 39, 52-53.

Recent media coverage shows that private citizens are trying to re-write the Second Amendment to call for stricter gun control.  Former Supreme Court Judge Stevens is fighting to amend the Second Amendment while former NYC Mayor Michael Bloomberg is investing $50 million (of his own money) to minimize the influence of the NRA and gain support for gun control.  While private citizens are being pro-active, the recent case law suggests that the Courts are less likely to amend such a long-standing interpretation to the Second Amendment. Therefore, while restrictions on gun ownership may be imposed, the case law suggests that a prohibition on guns may never occur.

Michael Kraemer is a partner with Kraemer, Manes & Associates, a law firm headquartered in Pittsburgh, serving all of Pennsylvania, with attorneys focusing on business law, employment law, litigation, and civil issues. For more information please visit www.lawkm.com.

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