How Broad is the Constitution’s Guarantee on Firearms Ownership?

January 26, 2015 Updated: April 23, 2016

Gun ownership in the United States is one of the most hotly contested debates.  Widely accepted jurisprudential doctrine guarantees one’s right under the Constitution’s Second Amendment to keep and bear arms.  However, the scope of these guarantees and public policy surrounding them has sharply divided partisans.

In light of recent gun-related tragedies, the public policy debate has shifted some to focus more on mental health rather than “gun control.”  While there are current laws that bar those with mental illness from possessing a firearm, these safeguards are not stringent enough according to many.  For most on the political right, blanket charges against limiting access to firearms is the wrong approach to address tragedies.  Rather, they wish to focus on recognizing early signs of mental illness and keeping firearms out of the hands of such individuals who may pose a threat.

Though most agree on this point, some believe that the current framework for keeping firearms out of the hands of some mentally ill individuals infringes on the rights of a particular class, which has no sufficient option for relief from such prohibitions if a previous diagnosis is no longer valid.  The Sixth Circuit Court ruled on this very topic back in December.  The case concerned an individual in Michigan who was involuntarily committed to a mental institution nearly 30 years ago after his wife left him.  The petitioner, now in his seventies, was deemed by a psychological review to have no substance abuse problems, to have no mental illnesses, and has not exhibited any mentally defective behavior other than the isolated incident 30 years ago.

However, federal law prohibits those who have been committed to mental institutions from possessing a firearm with the option to apply for a relief from prohibition to the Attorney General.  Since Congress gutted funding for the relief program only offering grants to certain states that can prove they have implemented a similar program, the Sixth Circuit ruled that the petitioner’s constitutional rights have been infringed upon because the state of Michigan does not currently have  a relief program.  According to the decision, “whether [petitioner] may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress’s inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual’s ability to exercise a ‘fundamental righ[t] necessary to our system of ordered liberty…’ cannot turn on such a distinction…We hold that the complaint, as alleged, states a violation of the Second Amendment.”

In other recent court action concerning the Second Amendment, a federal district court judge ruled over the summer that the District of Columbia’s ban on firearms outside the home infringed on the Second Amendment rights of law abiding citizens.  A key debate among legal scholars is the right to firearms for self-defense.  The courts have generally validated this notion, though others vehemently disagree citing historical records, the drafting and intention of the Second Amendment.  Others have identified that firearms are successfully used frequently by law abiding citizens for self-defense purposes.  Though, a recent editorial pointed out, “gun owners are far more likely to end up…accidentally shooting an innocent person or seeing their weapons harm a family member, than be heroes warding off criminals.”

On the flip-side, there does not seem to be any uniformity among the states regarding valid self-defensive conceal carrying as exemplified in an unfortunate arrest last year.  A single mother in Pennsylvania who works in a very rough neighborhood purchased a firearm lawfully to protect herself as she moved from her office to her car.  While driving through neighboring New Jersey, one of the most stringent states when it comes to gun control, she was pulled over.  In being a cooperative citizen, the woman notified the officer of her legal firearm in the glove compartment, however, she was arrested because under New Jersey law, it is illegal to possess a concealed firearm and she faces a minimum mandatory three year sentence.

The lack of uniformity among the states regarding Second Amendment rights has been a topic of concern.  The Sixth Circuit’s decision speaks directly to this point considering that a person’s location might affect their ability to exercise their Second Amendment right.    The Supreme Court has ruled that individuals can possess firearms in their home for the purposes of self-defense but has yet to rule on whether that right extends outside the home.  The Court dodged a chance to decide this issue last term in a New Jersey case that questioned if the Second Amendment allows one to carry a concealed handgun outside the home for self-defense purposes and if a requirement to provide a “justifiable need” to do so violates the Second Amendment.

The 27 word text of the Second Amendment provides a great deal of ambiguity given its historical context. Did the amendment merely offer protection for those to possess firearms on the condition they served in militias, or does it guarantee the right of everyone to own a firearm – the Supreme Court has adopted the latter.  Concerning the scope of the Second Amendment, the Sixth Circuit wrote in their December opinion, “The Second Amendment’s individual right to bear arms… has ‘boundaries [that] are defined by the Constitution. They are not defined by Congress….’Section 922(g)(4)’s [the law in question] prohibition is not necessarily improper as a matter of policy, ‘[b]ut the enshrinement of constitutional rights necessarily takes certain policy choices off the table.'”  The scope of the 27 word constitutional protection has ballooned by some accounts under 200 plus years of jurisprudence.

Since “[t]he government’s interest in keeping firearms out of the hands of the mentally ill is not sufficiently related to depriving the mentally healthy, who had a distant episode of commitment, of their constitutional rights,” it is not clear how public policy will be affected following the Sixth Circuit’s ruling.  This is best summed up by Lyle Denniston, writing for SCOTUSblog; the Sixth Circuit’s decision “could have an impact on gun control laws well beyond the specific limit at issue in this case.  It appeared to cast into constitutional doubt at least some of a host of laws, federal and state, that impose categorical bans on groups of individuals – that is, bans that preclude anyone in an excluded group from being able to prove individually that they should have access to guns.”

It is also unclear if the Supreme Court will weigh-in on this issue.  For the time being, the debate will continue.