Guns and the U.S. Constitution

Judge Gregg Galler

Judge Gregg Galler

The recent heartbreaking murders of school children in Newtown, Conn., have prompted a lot of discussion regarding guns and the rights of citizens to own, possess, or use them. What constitutional rights do citizens have regarding firearms? Can the government deny individual citizens the reasonable right to the use of firearms for lawful purposes? These issues revolve around the meaning of the words of the Second Amendment to the U.S. Constitution:
“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.”
What do these words mean? What is the law of the land? I do not propose offering any opinions about which policies should be chosen but instead, provide a brief outline on the current state of the law.
The final authority on the meaning of the U.S. Constitution belongs with the U.S. Supreme Court. Famed Supreme Court Justice Oliver Wendell Holmes once quipped, “We’re not final because we’re infallible, we’re infallible because we’re final.”
In cases decided in 2008 and 2010, the U. S. Supreme Court ruled that the Second Amendment protects the rights of individual citizens to own and possess those guns which are typically used for lawful purposes, such as self-defense.
The amendment’s language regarding a “militia,” the high court determined, means a group of citizens who are well-trained (described in the Second Amendment as “well regulated”) and capable of bearing arms for the protection of society. The justices reached this conclusion by relying on legal and historical evidence.
For example, James Madison, our fourth president (known as the “Father of the Constitution”) had described the purpose of the Second Amendment as, “A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
This does not mean that the rights in the Second Amendment are unlimited. The Supreme Court noted that society has legitimate interests in keeping guns away from those individuals who might be particularly dangerous — such as felons and the mentally ill. Similarly, reasonable restrictions can be imposed to forbid carrying firearms in “sensitive places” such as schools and government buildings.
Regulations, however, must be narrowly tailored to legitimate governmental purposes and can’t be imposed as a ruse to deny people their constitutional rights. Chicago had declared that only registered guns could be kept in the city, then made it illegal to register virtually any handgun. Similarly, Chicago required training at shooting ranges as a pre-condition to obtaining a gun permit but then banned all shooting ranges. Such regulations were struck down as incompatible with the Second Amendment.
The discussion of what public policies are best for society will undoubtedly be fiercely debated by advocates from both sides. However, all discussions need to acknowledge that the Supreme Court has decided that the Second Amendment protects the fundamental rights of the people themselves to keep and bear those firearms which are typically used for lawful purposes.

Tenth Judicial District Judge Greg Galler is chambered in Washington County. If you have a general question about the law and courts for Galler, send your question to the editor of this newspaper. Learn more about Galler or listen to a podcast of his column at www.judgegreggaller.com.

up arrow