The Second Amendment to the Constitution of the United States was adopted on December 15, 1791, as part of the Bill of Rights, which is comprised of the first ten amendments. When the Framers of our country were drafting the Constitution, they intended to qualify an individual’s rights from those reserved for the state, and provide safety measures within the document to protect those rights unique to each person.
The U.S. Supreme Court has ruled that the Second Amendment right to bear arms vests in individuals, not merely collective militias (armies), while also ruling that the right is not unlimited. State and local governments are limited to the same extent as the federal government from violating this right.
There are two clauses to the Second Amendment:
- The “prefatory” or justification clause: A well regulated militia, being necessary to the security of a free state; and
- The operative clause: the right of the people to keep and bear arms, shall not be infringed.
There has been much debate over exactly what right the Second Amendment protects. As a result, many people may not fully understand what “the right to bear arms” means.
Misconceptions about the Right to Bear Arms
1. Myth: The Second Amendment guarantees citizens the right to bear arms.
Truth: There is no definitive resolution by the courts of exactly how the Second Amendment should be interpreted. Historically, U.S. courts have held various interpretations of the Second Amendment. Such interpretations range from the perspective that this right lies only within state government officials, to the perspective that this right also lies within individual citizens.
However, in a landmark case known as District of Columbia v. Heller, 554 U.S. 570 (2008), the US Supreme Court explained that all citizens are the militia; the Second Amendment is an individual right, just like every other right protected in the Bill of Rights, and is independent of membership in any organized group or military unit.
It was the first Supreme Court case to decide whether the Second Amendment protects an individual’s right to keep and bear arms for self-defense.
2. Myth: The right to bear arms cannot be taken away.
Truth: Many people can and do permanently lose their right to own and use a gun; notably, convicted felons. However, some states provide a remedy to restore a felon’s firearms rights.
In California, a governor’s pardon is the only remedy to restore a felon’s right to possess a firearm and only if the felon was not convicted of a crime involving the use of a dangerous weapon (Penal Code Section 4854).
Other people prohibited from owning or possessing a gun include:
- Defendants awaiting trial on felony charges;
- Fugitives from justice;
- Drug users and addicts;
- Undocumented aliens;
- Aliens lawfully admitted to the United States under non-immigrant visas;
- Anyone subject to a restraining or protective order;
- Anyone convicted of a misdemeanor crime of domestic violence;
- Minors under the age of 18 for the purchase of a shotgun or rifle;
- Persons less than 21 years of age for the purchase of a firearm that is other than a shotgun or rifle;
- Individuals who have renounced their U.S. Citizenship; and
- Veterans dishonorably discharged from the United States military.
3. Myth: The Second Amendment permits ownership of any type of firearm.
Truth: Many federal and state laws regulate what types of firearms an eligible citizen may lawfully possess. Certain firearms and other destructive devices are unlawful for a civilian to own, use or carry. Examples of illegal weapons include:
- Destructive devices, such as:
- Missiles; and/or
- Machine guns and fully automatic firearms;
- Any firearm silencer;
- Short-barreled (“sawed off”) rifles with a barrel length less than 16” and shotguns with a barrel length less than 18”;
- Semi-automatic assault weapons (manufactured after October 1, 1993);
- Any firearm where the serial number is missing, or has been altered or destroyed (“filed off”).
4. Myth: You must first obtain a permit before you purchase a firearm.
Truth: In California, you do not need a permit to buy a gun. However, in California, generally all firearms purchases and transfers, including private party transactions and sales at gun shows, must be made through a California licensed dealer.
Additionally, you will be required to submit to and pass a national criminal background check before you may lawfully obtain a firearm. California law also imposes a 10-day waiting period before a firearm can be released to a purchaser or transferee.
5. Myth: You may legally purchase a firearm and give it to someone else.
Truth: It is illegal to transfer or purchase a firearm on behalf of anyone who may not lawfully possess one. Buying a gun in your name and then giving it to a prohibited person is called a “straw purchase.”
If you straw purchase a firearm from a Federal Firearm Licensed (FFL) dealer, you can be charged with making a false statement on a federal firearms transaction record (Form 4473). Lying on this form is a felony and can be punished by up to five years in prison in addition to a maximum $250,000 fine.
Transfer of a firearm between a parent and child, grandparent and grandchild or between spouses/registered domestic partners is exempt from the dealer transfer requirement, provided that a legal firearm is being transferred to a person who may lawfully possess one.
6. Myth: You must obtain a permit to legally carry a firearm.
Truth: You do not need a permit to openly carry a shotgun, rifle or handgun in California. However, you may need to register your handgun, and you will need a Carry Concealed Weapon (“CCW”) license if you intend on carrying your handgun hidden on your person.
CCW licenses are issued through a local law enforcement agency (such as the County Sheriff’s Department or the Chief of Police of the county or city where you reside) and are regulated by the state.
Recently, the United States Court of Appeals for the Ninth Circuit ruled that the Second Amendment guarantees the right of a responsible, law-abiding citizen to carry a firearm in public for purposes of self-defense. (Peruta v. County of San Diego, Case No. 10-56971, U.S. 9th Cir. February 13, 2014).
This decision, although not yet final, struck down a provision requiring proof of “good cause” be demonstrated in your CCW application before you could lawfully carry a concealed weapon in California.
Contact Wallin & Klarich Today if You are Facing State or Federal Firearms Charges
If you or someone you care about has been charged with a California or federal crime involving a firearm, you should speak with one of our experienced criminal defense attorneys at Wallin & Klarich right away. Our attorneys at Wallin & Klarich have over 30 years of experience successfully defending our clients charged with state and federal firearm violations.
State and federal firearm laws are very complex. If you are convicted of unlawful possession, use or purchase of a firearm, you could be facing serious consequences, including a lengthy prison sentence, substantial fines and permanent loss of your rights to possess a firearm in the future. If you are not a U.S. citizen, you can also be deported or refused entry into the United States.
Wallin & Klarich has offices conveniently located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. We will explain all of the charges against you and make certain all of your constitutional rights are protected. We will create a defense strategy that helps you receive the best result possible in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.