I have a constitutional law question. How can states usurp the 2nd amendment by passing laws that infringe on my right to bare arms. Just like states can not usurp federal law by setting there on laws on immigration how can they on the right to bare arms?
Has this ever been challenged all the way to the supreme court?
3 Answers from Attorneys
The Second Amendment does not forbid all limits on the right to bear arms. The law is not yet clear on what limits the states can and cannot impose. There are multiple court cases dealing with that question. So far, the Supreme Court has said relatively little about this topic. (See McDonald v. Chicago, 561 U.S. 3025 (2010) and District of Columbia v. Heller, 554 U.S. 570 (2008).) Over time, additional decisions from the Supreme Court and lower courts should clarify the law.
Yes, I would concur in attorney Hoffman's answer.
It actually is not as complicated as everyone, including the courts, tries to make it seem. Look at the actual wording of the entire Second Amendment and you will see that all it only says that you have the right to own a gun. It doesn't say anything about what type of gun you can own. Now look at Article I Section 8 of the Constitution of the United States (a really neat document that people forget about when they get fixated on the second clause of Second Amendment). Article I Section 8 says that "The Congress shall have Power To . . . provide for organizing, ARMING, and disciplining, the Militia". If you get confused about the reference to the militia, go back and read the part of the one sentence that is the Second Amendment that comes before the comma (and even though it does come before a comma, it is still part of the Second Amendment and can't be ignored) you may notice that the reason that you have the right to "bear Arms" is because "A WELL REGULATED Militia [is] necessary to the security of a free State". So your right to own a gun only exists because of this need for "A well regulated Militia". Yes, the Second Amendment says that you have the right to own a gun. But Article I Section 8 of the Constitution says that Congress has the right to regulate what kind of gun you can own. The only way that Congress can infringe upon the Second Amendment is if it passes a law that bans the right to own ANY gun. But it is not an infringement of the Second Amendment to pass a law that says you can own a gun, just not a high capacity assault rifle. The second clause of the one sentence that is the Second Amendment that states that "the right of the people to keep and bear Arms, shall not be infringed" doesn't exist in a vacuum. That sentence does have a first clause that can't be ignored simply because you want to. And it is bounded by the Constitution of the United States, which also can't be ignored. I personally don't believe that anything needs to be "clarified" if you simply take the time to read the ENTIRE Second Amendment AND the Constitution of the United States. The first only says that you may own a gun, but the second says that Congress has the power to control what kind of gun you can own and how you get that gun. I know that there are a lot of people who are going to hate what I've said, but try reading everything for yourself and you will see that this is already crystal clear.