Southern California Defense Blog

On June 28, 2010, the United States Supreme Court decided McDonald v. City of Chicago, a closely watched case that recognized that states cannot infringe a person’s right to own a firearm for self-defense in his home. The Court ruled that a law totally banning handgun possession in the city of Chicago was unconstitutional under the Second and Fourteenth Amendments.

The Second Amendment states that “[a] well-regulated milita, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

Guns rights groups such as the NRA had argued that the Second Amendment protected the individual right of a person to possess a firearm. Gun control activists maintained that the right described referred to the state militia’s right to have firearms for the purpose of defending the state against the federal government.

Prior to two years ago, the United States Supreme Court’s interpretation of the Second Amendment aligned with the gun control side of the argument. In 2008, however, the Court decided D.C. v. Heller, a decision that recognized that a person had an individual right to own a firearm and that the federal government could not infringe upon that right.

Through a doctrine of constitutional law called incorporation based on the Fourteenth Amendment’s Due Process Clause, the Court in McDonald recognized that state and local governments also could not infringe on that right.

So what does this mean for current gun laws?

We know that a total firearm ban is unconstitutional, but what about other laws? Many laws limit when or where you can possess a gun, but McDonald casts a shadow on their constitutionality. What about possessing a gun in a public place, like near a school or in a stadium or an airport? What about possessing a gun in your car?

What about if a city bans live ammunition but permits the sale of only rubber bullets that can be fired from standard firearms?

The Court did describe some of the limits of the Second Amendment and asserted that most existing gun restriction laws would be constitutional. For example, the Court explicitly stated that current laws banning gun ownership for felons are valid. But under the reasoning of McDonald, don’t felons have a right to self-defense in their own homes too?

The only thing certain after McDonald v. Chicago is that a flood of litigation will follow to determine which gun restrictions laws are constitutionally valid. If a person is convicted under a gun control law that is later held unconstitutional, his conviction may be overturned.

Under California Penal Code section 12020(a)(1), selling or possessing several different types of weapons or bullets can be either a misdemeanor or a felony. Some of the banned weapons include undetectable firearms, firearms that are not readily apparent to be firearms, and short-barreled rifles and shotguns. All of these weapons could conceivably be used for self-defense in one’s home, so it’s not certain if every part of the statute will survive a constitutional challenge. Still, Penal Code section 12022(a)(1) and other California gun states remain the law and have not been explicitly invalidated by McDonald.

If you or someone you know has been accused of a weapons crime, you will need an experienced attorney who is knowledgeable about the dynamic changes occurring in criminal and constitutional law. At Wallin & Klarich, we have over 30 years experience in defending clients from gun possession charges and protecting their constitutional rights. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.