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A Primer on Gun Law

Since last weekend’s horrifying massacre in Orlando, gun law has been in the news. Senator Christopher Murphy of Connecticut even led a 15-hour filibuster to seek new gun control measures. So we figured this would be a good time to look at gun law in our ongoing series on different areas of the law.

There are two separate but intersecting issues affecting gun law in the U.S. One is the legislative fight over gun control at the state and federal level within the bounds permitted by the current interpretation of the Second Amendment. The other fight is over the interpretation of the Second Amendment itself and to what extent it guarantees individuals the right to bear arms. The latter fight, of course, sets the terms for the former.

Senator Murphy’s filibuster sought votes on measures to restrict those on the government’s terrorist watch list from buying guns and to increase background checks. Other federal legislative issues include the assault weapons ban that was passed in 1994 but expired in 2004. After the Sandy Hook shooting in 2013, a similar bill was reintroduced but failed.

At the state level, there’s a hodgepodge of different regulations all over the country. Let’s look at concealed carry laws, for example. Some states don’t require any permit to carry. Others require permits to carry a concealed weapon; some of these states give law enforcement the discretion whether to issue each permit whereas others require authorities to issue a permit provided certain conditions are met. The trend lately is toward fewer restrictions.

If you find all this fascinating, there might be a way to turn it into a practice. Here, for example, is a California attorney who claims to have specialized in Gun Law since 1982 (his website looks not much newer).

On a constitutional level, the big issue is: just what does the Second Amendment mean? What is that whole thing about “a well regulated Militia” about, and was it really intended to confer to individuals the right to have guns for their own purposes? Former Chief Justice Warren Burger believed that the Second Amendment was really about the states and not about individuals. The Supreme Court has more recently taken a different view, affirming the right of individuals to bear arms, and holding that the Second Amendment protects individuals against state and local gun control laws.

So if constitutional law is your thing, there’s ample opportunity to work on either side of this issue. It’s being taken up in the courts right now. Both the decisions mentioned above were 5-4, with the late Justice Scalia in the majority. With the composition of the Supreme Court uncertain for the years to come (will anyone ever get confirmed?), there might be some changes. Or there might not. But there’s an opportunity to get involved.