The 2nd Amendment is a restrictive clause forbidding the government from infringing on that right. Should it not then follow that all firearm laws are unconstitutional?
Should it not also follow that, as a branch of government, the judiciary, particularly, the Supreme Court, can only, by Constitutional Law, rule every and all cases involving firearms legislation or regulation to be unconstitutional. In Fact, should it not be that to otherwise rule in favor of any firearms legislation, even under the Commerce Clause, would place the Court itself in violation of the Constitution?
2 Answers from Attorneys
While I and the united States Supreme Court agree that the 2nd amendment is an individual right (in the past many had argued it only gave the govt the right to arm militias like the national guard), no right is absolute. For instance, the right to free speech does not give you the right to shout "fire" in a crowded theater if there is no fire.
Thus the courts have held that the second amendment preserves an individuals right to bear arms as that right existed when the 2nd amendment was first enacted. The founding fathers would certainly have had problems with citizens owning nuclear or chemical weapons yet these are arms. Some would say that they would also have a problem with citizens owning fully automatic weapons though that is debatable.
But most would agree at this point that firearms cannot be banned, but reasonable limitations can be placed upon them so long as those limits are in keeping with the intent of those who enacted the 2nd amendment.
Mr. Willison is largely correct. No constitutional right is absolute, and the right to bear arms has limits. Mr. Willison says that "most would agree" that these limits are the ones the founders had in mind over 200 years ago. Many would agree with that premise, but probably not most. There are many opinions about how those limits should be defined.
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