April 9, 2008

US SUPREME COURT HEARS SECOND AMENDMENT CASE

The United States Supreme Court heard arguments recently in a case involving a challenge to Washington, DC’s ban on the possession of handguns. The law had been challenged by a resident of Washington, DC on the ground that the law runs contrary to the Second Amendment to the United States Constitution.

The Second Amendment provides, in its entirety, “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.”

At issue here is whether the Amendment protects an individual person’s right to possess a firearm (i.e., the “Individual Rights” theory), or whether the right to “keep and bear arms” is only tied to service in a state militia, such as, for instance, the National Guard (i.e., the “Collective Rights” theory). The United States Supreme Court has never squarely answered this question.

Even if the Court adopts the “Individual Rights” theory, the Court must still decide to what extent the right to own a gun can be limited consistent with the Second Amendment. As with other Constitutional Rights, there are very few rights that are absolute. For instance, one’s right to freedom of speech could not be said to protect the right to threaten to kill one’s spouse.

A decision is expected in the case sometime before June, when the Court recesses for the Summer.

March 1, 2008

I Want to Own a Handgun

Does the Second Amendment to the United States (US) Constitution allow American citizens to keep handguns at home? This is the question now before the US Supreme Court, at it decided at the end of last year to rule on the issue. The US Supreme Court will hear arguments on the issue shortly and render its decision by summer 2008. Its decision could affect thousands and thousands who want to own handguns. More importantly, however, it could result in the contesting of several State and Federal restrictions and regulations pertaining to firearms ,across the US.

The issue arose after Washington DC residents challenged a law which had prohibited handguns in Washington DC for 31 years. The law was struck down and an appeal was made to the US Supreme court.

In particular, the Second Amendment states that, “the right of the people to keep and bear arms shall not be infringed.” Opponents of the Washington DC law argue that it infringes on this Second Amendment right to bear arms. Meanwhile, proponents of the law claim that most violent crimes involve the use of a handguns and thus, handguns should continue to be outlawed.

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September 19, 2007

Firearms and minors in California

It is illegal for a minor under age 16 to possess a handgun unless he or she is accompanied by a parent or responsible adult. If the minor is age 16 or older, he or she may only posses a handgun or live ammunition with the written permission of a parent or guardian, and may only possess these items for legal purposes such as recreational sports. (PC § 12101) In addition, no one may sell or give a firearm, even an air gun or gas-operated gun, to a minor without parental consent. Some types of firearms and firearm-related equipment are outright illegal, with or without parental permission. Such items include sawed-off shotguns, machine guns and unmarked pistols (handguns that have their identifying numbers removed), as well as sniper scoped, silencers and plastic firearms. (PC §§12020, 12094, 12520)

Other illegal weapons (illegal to manufacture, import, possess, sell, give or even lend to someone) include any ballistic knife, fletchette dart, blackjack, sling shot, nunchaku, metal knuckles, dirk, dagger, a weapon held in a camouflaging firearm container and oriental throwing stars. Also prohibited are belt buckle knives, leaded canes, zip guns, shurikens, lipstick case knives, writing pen-knives and unconventional pistols. (PC §§12020, 12094)

Call the experienced attorneys at Wallin & Klarich if you or your child is arrested for a weapons offense.

July 1, 2007

FIREARMS AND THE LAW

You might know that California law prohibits convicted felons from possessing or owning firearms. California Penal Code Section 12021 makes it illegal to possess a firearm in California for any person who has previously been convicted of any Felony offense in California. That prohibition is for life.

But, I’ll bet you did not know that same law makes it illegal to possess a firearm for a period of ten (10) years if you have been convicted of any of the following Misdemeanors:

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April 1, 2007

Does the Second Amendment protect an individual’s right to own and possess a firearm?

The United States Supreme Court might be primed to address this question thanks to a recent opinion by the United States Court of Appeals for the District of Columbia Circuit in Washington, DC. Parker v. District of Columbia (Ct. App. Case No. 04-7041 decided March 9, 2007).

In Parker, six residents of Washington, DC sued the District, claiming that the District’s firearms laws violated their rights under the Second Amendment to own and possess a firearm. The law in issue bans firearms from being “carried” without a license (which is almost never granted), and a person could be charged with a crime for illegally “carrying” a firearm if he or she were to simply “carry” a firearm from one room of the house to another. The law further requires that all lawfully owned firearms be kept unloaded at all times and either disassembled or bound with a trigger locking device. Put simply, under the law, practically no one is permitted to have a functioning firearm in his or her home in the District. A lower court judge dismissed the lawsuit and the residents appealed.

On appellate review, the Court of Appeals began with the text of the Second Amendment, which 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.” The Court went on to note that, in the Second Amendment debate, there are basically two camps: the individual rights camp, which believes that the Amendment protects an individual person’s right to possess firearms for individual use; and the collective rights camp, which believes that the Second Amendment protects only the rights of individual state governments to raise and arm their own state militias, which are akin to today’s National Guard. The Court noted a third camp, the sophisticated collective rights camp, which believes that an individual person could, in theory, raise a Second Amendment claim in court, but that the Second Amendment does not give an individual the right to own or possess a firearm for personal use, only civic use.

The Court found that there is no authoritative answer to the question “who is right” the individual rights camp, the collective rights camp, or the sophisticated collective rights camp. The United States Supreme Court has never directly answered this question. The Court’s research into the question revealed that the vast majority of the United States Courts of Appeal that have considered this question (only the Second Circuit has yet to weigh in on this question) have adopted the collective rights model. Only the Fifth Circuit has adopted the individual rights model. The Court pointed out as well that the question has yielded mixed answers from the various state courts that have addressed the question, and that the United States Department of Justice recently released an opinion that adopts the individual rights theory.

The Court thus turned to the text of the Second Amendment, the history of its enactment, as well as the leading US Supreme Court case on the Second Amendment, United States v. Miller, 307 U.S. 174 (1939). The Court found that, although the Miller case did not directly answer the question of whether the Second Amendment protects an individual’s right to own a firearm, the High Court’s opinion in Miller, “implicitly assumes that interpretation.”

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