Gun Control Laws Are Both Unconstitutional and Constitutional. How Can that Be?

The Supreme Court has ruled that gun control laws are unconstitutional. It stated that the Second Amendment allows the American people to own firearms, but it also stated that this right can be limited. For example, several instances exist where the right to bear arms is curtailed. In this case, felons and those who have been diagnosed with a mental illness have lost their rights to own guns. Furthermore, guns are not allowed in government buildings, and there are also laws concerning the sale of weapons.

The Supreme Court also ruled “dangerous and unusual weapons” are prohibited. Therefore, an assault rifle that has large clips falls under the category of a dangerous and unusual weapon, so it is constitutional to ban it.

The National Rifle Association’s Thoughts

The Supreme Court has stated this issue succinctly, but that doesn’t mean that some people do not agree. One group that does not agree that gun laws are constitutional is the NRA. The NRA has stated unequivocally that every gun law is unconstitutional.

In Columbia v. Heller, the handgun control statutes that were enacted in 1976 were being questioned in 2008. The Supreme Court was set to decide whether Washington, D.C. could prohibit the registration of handguns, prohibit the carrying of concealed weapons and require that gun owners either keep their guns unloaded, locked away or disassembled. Gun control opponents argued that these regulations violated a person’s rights that are guaranteed under the Second Amendment.

The Second Amendment clearly states the following: “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.”

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Gun Control Advocates’ Stand

Gun control advocates offered a different reading of the Second Amendment. According to gun control advocates, the “regulated militia” refers to the bearing of arms as a member of an organized militia. Advocates for gun rights said that the Second Amendment was referring to each individual person’s right to bear arms is similar to the way that the First Amendment protects a person’s individual speech.

Gun control advocates didn’t stop there. They also stated that when the word “militia” is used in other areas of the Constitution, it is referring to a militia that is organized by the state. The National Guard is used as an example here. They also state that the Second Amendment prohibits Congress from disarming state-organized militias.

Gun control advocates even invoked the language that was used at the time to explain their view of this issue. They stated that the phrase “the right to keep arms” would have been used in the times when the Constitution was written to protect a right to gun ownership, but “right to bear arms” limits the right to own guns for use in military operations.

Gun control opponents state that every single one of the gun laws is a violation of the Second Amendment. After Heller, it was unclear if the Second Amendment applied to state and local governments. Therefore, the states were free to create any gun law as long as the states’ supreme courts found it to be constitutional under the state constitution. This situation ended in 2010 when the Supreme Court decided McDonald v. Chicago.

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Many Gun Laws Are Unconstitutional, But They Still Remain

This aforementioned ruling found gun laws to be unconstitutional, but this didn’t make it easy to remove gun laws from the books. These laws were not removed. In order to do so, someone has to challenge the law in the court. This will only occur after someone breaks one of these laws and is sentenced to serve some type of punishment. Then, the convict has the opportunity to challenge the law in court, but that requires resources. A convicted felon who is away from his family serving time in prison after having lost his job almost certainly will not possess the financial means to launch a constitutional challenge.

Related: Q&A with Sujit Choudhry, Founder of Center for Constitutional Transitions