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Judge Greg Galler on Guns and the US Constitution

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.

The recent heartbreaking murders of school children in Connecticut 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 2nd 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 to offer any opinions about which policies should be chosen, but instead to 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 2nd 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 Court determined, means a group of citizens who are well-trained (described in the 2nd Amendment as “well regulated”) and capable of bearing arms for the protection of society.  The Court reached this conclusion by relying on legal and historical evidence.  

For example, James Madison, our 4th President (known as the “Father of the Constitution”) had described the purpose of the 2nd 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 2nd 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 but then made it illegal to register virtually any handgun. Similarly, Chicago required training at shooting ranges as a precondition to obtaining a gun permit but then banned all shooting ranges. Such regulations were struck down as incompatible with the 2nd 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 2nd Amendment protects the fundamental rights of the people themselves to keep and bear those firearms which are typically used for lawful purposes.

Judge Galler is chambered in Washington County.

Paul Randall January 19, 2013 at 02:58 PM
Thank you for posting this. It is important, in my opinion that all Americans understand these common sense rulings given to us by the Supreme Court. The words "firearms which are typically used for lawful purposes" are simple and straight forward and, powerful. We must use those words to draw the distinction on "acceptable firearms". I am an owner of guns and would object if the government wanted to take them away. But my guns fit the words stated by the court, they are intended for sport. I cannot understand how the words "Assault rifle" can in any way fall into the same category. We simply have to look to the dictionary to understand the intent, implied or otherwise of that type of firearm. as·sault [uh-sawlt] Show IPA noun 1. a sudden, violent attack; onslaught: an assault on tradition. 2. Law. an unlawful physical attack upon another; an attempt or offer to do violence to another, with or without battery, as by holding a stone or club in a threatening manner. 3. Military . the stage of close combat in an attack. 4. rape The NRA is standing firm behind legalized "Assault" weapons. I encourage all Americans to look at the definition of the word "assault", then look at our children, then make your decision based on the words. Thank again Judge Galler, for posting these words.

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