San Jose Criminal Law Office

In the recent case, McDonald vs. City of Chicago, which was published by the U.S. Supreme Court on June 28, 2010, the high court ruled that the “right to bear arms” which is part of the Second Amendment to the U.S. Constitution, applies not just to the federal government, but to the individual states. The court also further explained that the right to bear arms was intended to guarantee the rights of individual citizens to bear arms.

This means that some gun control laws passed by states, cities or counties, may be overruled in the future in court, or taken off the books if law enforcement attorneys suggest on their own that a locally-passed gun-control law violates the “McDonald ruling”.

The Second Amendment to the U.S. Constitution, was part of the Bill of Rights and has been part of the law of the land for over 200 years. Nonetheless, because of the danger of more and more deadly weapons in the hands of citizens that no longer live on farms but in crowded cities, there has been pressure for more gun control over the last 40 years or so. From gun-control groups, we hear that the framers of the Constitution had in mind the need for a farmers’ militia armed with rifles as opposed to drug-using urban gangsters armed with automatic weapons. From gun-rights groups, we have heard the statement: “Guns don’t kill people; People kill people.”

On June 28, 2010, the US Supreme court said that non-federal governments cannot ban handguns outright. However, local governments can still restrict guns in situations where the public need trumps the individual freedom. This is still allowed in possession of guns by convicted felons, sawed-off or concealed weapons, or guns in the courthouse or a school. State governments can still impose stricter penalties for use of firearms. For example, in California, the penalty for using a gun to murder a person automatically raises the punishment for murder by an additional 25 years to life. Similar stricter penalties exist when firearms are present with drugs being sold or are used by parties who are found to have committed a crime for a criminal street gang.

We know that while these exceptions still are considered reasonable, a local government cannot regulate a handgun to the extent that there is no more “right to bear arms”. We can expect that in cases where a gun is taken out to protect a person’s property, there is likely to be some new uncertainty in the law.

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