Posted: 04 October 2006 at 7:40am | IP Logged | 10
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As the resident law prof, I might as well chime in...
The provision of the Federal Constitution guaranteeing the right of the people to keep and bear arms applies only to the federal government alone, leaving the states free to regulate the manner of bearing arms, subject to the provisions of the state constitutions.
Furthermore, it has been stated that the Second Amendment was not adopted with individual rights in mind, and establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia. A state or territorial legislature, therefore, in the absence of similar provisions in the organic law, is free to regulate the manner of bearing arms. Nevertheless, it may lack the power entirely to destroy the right.
Most state constitutions, however, contain a provision protecting the right to keep and bear arms which is similar in substance or effect to that found in the United States Constitution, and legislation in such a state may not infringe the provision of its constitution. Unlike the U.S. Constitution, which protects the right only in terms of the need to maintain a "well-ordered" militia, many of the state constitutions also protect the right to keep and bear arms in self-defense, and are thus broader in application than the Second Amendment.
However, like the right protected from infringement by the Second Amendment, the right protected by the state constitutions is not absolute, but instead is subject to regulation by the states or territories and their political subdivisions, under their police power, provided the regulation is reasonable.
Even as against the federal government the right to keep and bear arms guaranteed by the Second Amendment is not absolute, and does not confer on individual citizens the right to bear arms in violation of validly enacted federal law. The Second Amendment does not confer on U.S. citizens a broad right to unregulated possession of all types of weapons. Rather, the right is subject to reasonable regulation for legitimate purposes such as the protection of public health and safety.
To pass constitutional muster, a regulation pertaining to weapons and implicating the constitutional protections is required to: (1) be a reasonable limitation, (2) be reasonably necessary to protect public safety or welfare, and (3) be substantially related to the ends sought. Further, even a legitimate governmental purpose in regulating the right to bear arms cannot be pursued by means that broadly stifle the exercise of the right, or criminalize a substantial amount of innocent, harmless, or useful conduct, where the governmental purpose can be more narrowly achieved.
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