CONSTITUTION : Inherent ‘Right’ to Own a Gun Has Yet to Stand Up in Court

Thanks to the efforts of the National Rifle Assn., nearly everyone knows that the Second Amendment speaks of “the right of the people to keep and bear arms.” It is less known, however, that no federal court has ever struck down a gun control law based on the Second Amendment.

While the principle remains popular that every law-abiding person has the right to own a gun, most legal experts say the Second Amendment is something of a dead letter.

“The claim that gun-control laws violate the Second Amendment has no legal or historical basis,” 27 prominent law professors said in a statement published recently in several newspapers. They said the public accepts a false view of the amendment because it has been misled by the NRA, which has suffered its biggest legislative defeats in the last year as Congress passed the Brady handgun-control bill and is likely to approve a ban on assault weapons.

Former Chief Justice Warren E. Burger has gone so far as to accuse the NRA of perpetrating a “fraud on the American people” by maintaining that individuals have a right to own guns.

Writing during the bicentennial celebration of the Bill of Rights, Burger said the Second Amendment was intended to ensure that states could maintain their militias.

“There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms,” Burger wrote. “Surely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special’ or a machine gun without any regulation whatsoever.”

Adopted in 1791 as part of the Bill of Rights, the Second Amendment says: “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.”

The Supreme Court has taken up the meaning of the amendment only once, in a 1939 case that arose over the arrest of two Arkansas bootleggers. Jack Miller and Frank Layton were stopped crossing state lines and were charged with transporting an unregistered sawed-off shotgun. In 1934, Congress had passed the National Fire Arms Act to combat Prohibition-era gangsters, and it required registration and a tax to be paid on certain guns.

Lawyers for Miller claimed the gun law violated the Second Amendment, but the high court rejected that view. Its opinion examined the Colonial history behind the Second Amendment and concluded that the framers of the Constitution sought to protect the states’ right to raise militias.

The Second Amendment had “the obvious purpose to assure the continuation and render possible the effectiveness of such (state) forces,” the court said. Unless a gun-control law interferes with “the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

Since then, the courts have routinely rejected claims that an individual’s right to bear arms is protected.

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For example, the village of Morton Grove in suburban Chicago banned private ownership of virtually all handguns, and the NRA claimed this measure violated the Second Amendment. But the U.S. appeals court in Chicago rejected that view, and the high court refused without dissent to hear an appeal of the issue in 1983.

This legal view does not mean that members of Congress or state lawmakers must or should regulate gun ownership, only that they may do so.

But lawyers for the NRA have not given up. “The Supreme Court has not definitively resolved the Second Amendment question,” says Stephen P. Halbrook, a Fairfax, Va., attorney who has represented the NRA. He notes that the justices have not ruled squarely on a federal “possession ban,” as opposed to a regulatory measure.

But Dennis A. Henigan, general counsel for Handgun Control Inc., counters with a long list of court rulings rejecting the claim that the Second Amendment protects personal gun ownership. “This is one issue where the courts have been crystal clear,” Henigan said. “Gun control is not a constitutional issue.”