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Second Amendment: Federal Decisions

Landmark 2nd Amendment Decisions

McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010), landmark decision by the Supreme Court of the United States where it held that the Second Amendment was incorporated by the Due Process Clause of the Fourteenth Amendment thereby applying to individual states and further determining that the “right to keep and bear arms” was an individual right and therefore protected by the Second Amendment.

District of Columbia v. Heller, 554 U.S. 570 (2008), a landmark decision by the Supreme Court of the United States where it held that the Second Amendment protects an individual right to possess a firearm unconnected with service in the militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. Furthermore, the Court held statutes banning handgun possession in the home and the statute requiring rendering any lawful firearm in the home inoperable for purpose of immediate self-defense violated Second Amendment. However, the key issue that was not addressed by the Court in this decision was whether the decision applied to states. This question answered in McDonald v. City of Chicago.

United States v. Emerson,, 270 F.3d 203 (5th Cir. 2001), Emerson was indicted for possession of a firearm while being under a restraining order and argued that the statute violated his Second Amendment rights under Constitution. The court held the Second Amendment protects individual Americans in their right to keep and bear arms but the rights protected by Second Amendment are subject to restrictions that are reasonable and not inconsistent with right as historically understood and prosecution of defendant for possessing firearm while subject to order entered in Texas divorce action did not violate Second Amendment.

United States v. Miller, 307 U.S. 174 (1939) The Supreme Court determined whether the Second Amendment inhibits the federal government from regulating guns, more specifically in this case the National Firearms Act (NFA) regulations. The National Firearms Act, as applied to Miller indicted him for transporting a “sawed-off” shotgun across state lines without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act. The Court held the NFA was not unconstitutional and did not violate the Second Amendment. Furthermore, the Court held that if the weapon did not have “some reasonable relationship to the preservation or efficiency of a well- regulated militia” then the Court could not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Administrative Law and Agency Decisions

Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF)

Recent Proposed Rules

Federal Firearms License Proceedings- Hearings,77 Fed. Reg. 5,460 (Dep’t of Justice Feb. 3, 2012) (to be codified at 27 C.F.R. pt. 478).

Importation of Arms, Ammunition and Implements of War and Machine Guns, Destructive Devices, and Certain Other Firearms; Extending the Term of Import Permits, , 77 Fed. Reg. 5,736 (Dep’t of Justice Feb. 6, 2012) (to be codified at 27 C.F.R. pt. 447, 479).

Machine Guns, Destructive Devices, and Certain Other Firearms; Amended Definition of “Pistol” ,33 Fed. Reg. 17,625 (Dep’t of Justice April 7, 2005) (to be codified at 27 C.F.R. pt. 479).

Elimination of Firearms Transaction Record, 75 Fed. Reg. 47,254 (Dep’t of Justice Aug. 5, 2010) (to be codified at 27 C.F.R. pt. 478).

Recent Published Rules

Residency Requirements for Aliens Acquiring Firearms, 77 Fed. Reg. 33,630 (Dep’t of Justice June 7, 2012) (to be codified at 27 C.F.R. pt. 478).

Firearms Disabilities for Certain Non immigrant Aliens, 77 Fed. Reg. 33,625 (Dep’t of Justice June 7, 2012) (to be codified at 27 C.F.R. pt. 478).

Decision-Making Authority Regarding the Denial, Suspension, or Revocation of a Federal Firearms License, or Imposition of a Civil Fine, 74 Fed. Reg. 1,875 (Dep’t of Justice Jan. 14, 2009) (to be codified at 27 C.F.R. pt. 478).

Recent Proposed Legislation

Large Capacity Ammunition Feeding Device Act, H.R. 308, 112th Cong. (2011).

Citizen’s Protection at Federal Events Act,H.R. 496, 112th Cong. (2011).

Stop Online Ammunition Sales Act, S. 3458, 112th Cong. (2012).

National Right-to-Carry Reciprocity Act, H.R. 822/2188, 112th Cong. (2011).

 

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