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Leonardo Angiulo: Two Supreme Court Decisions Shaping the Gun Control Debate

Monday, January 21, 2013


There is a national conversation about guns right now. The voices of major media outlets, politicians, and regular citizens at dinner are all part of the discussion. It is an emotional topic for many; some people vehemently supporting their positions with calls for public safety and some arguing, just as passionately, that they have rights granted to them by the Second Amendment that must not be infringed.

As a general principle, a legislature's authority to write laws is limited by the scope of the applicable constitutional provision. If an unconstitutional law is passed, and then enforced by the executive branch, the individual citizen whose rights are infringed can bring a lawsuit of the appropriate nature alleging the same.

Take, as an example, the statutory scheme in Illinois that banned handgun possession as discussed in the U.S. Supreme Court case of McDonald v. City of Chicago from 2010. In that case, the Supreme Court discussed the Second Amendment and ruled that its provisions are applicable to the individual states, because the right to keep and bear arms is fundamental to our nation's scheme of ordered liberty and is deeply rooted in our history and tradition. By so ruling, the court was also deciding that neither the federal nor state governments could infringe upon the rights articulated in the Second Amendment.

Two years before McDonald v. City of Chicago, Justice Scalia authored another opinion that should inform our current national debate. In 2008, the District of Columbia v. Heller case provided the justices an opportunity to parse, and define, the terms of the Second Amendment. The words of that amendment are ordered differently than the way we speak today and the number of commas involved would drive your high school English teacher crazy. The Heller opinion looks at those grammatical quirks and states that it was written that way for a reason.

To summarize, the Heller court ruled that the terms work together to guarantee the individual right to possess and carry weapons in case of confrontation that extends to keeping handguns in the home for self-defense as well as other firearms for other purposes. The opinion also discussed how the terms work in conjunction with the historical context to show that Second Amendment rights are not limitless.

In fact, history informs the court's decision that restrictions on firearms were as natural as the existence of an individual's right to defense. The court used examples of limits on carrying dangerous or unusual weapons, possession by felons or the mentally ill, the exclusion of firearms from schools and governmental buildings, and limits on commercial sale of arms to make its point. Moreover, it specifically stated that this list of presumptively lawful restrictions was only to provide examples and was not exhaustive.

I encourage individuals to use your web browser of choice to search for these cases and read them for yourselves. Both McDonald and Heller are available as free electronic versions and this column isn't nearly long enough to do justice to the breadth and depth of the majority opinions or the dissenting justices. I submit to you readers that we owe it to ourselves—and to our nation—to have a debate about the future that is informed by law and history. The two cases listed here are only two recent opinions, but they articulate important considerations in Second Amendment arguments. I submit that they provide great beginnings for informed debate.  


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