by Warren O. Brennan

Created on: October 19, 2009

The purpose of this article is to discuss the Constitutional issues involved with mandated criminal background checks for those purchasing firearms. I take no position on the sensibility of such background checks or the safety issues involved. Instead, my analysis is purely concentrated on the interpretation of the United States Constitution as it relates to the matter.

The 2nd Amendment

The 2nd Amendment to the United States Constitution proscribes, A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. While the shorthand definition for the amendment has become the second amendment contains a right to bear arms, a careful reading of the text suggests something much different. The amendment contains two, clauses :

A well regulated militia, being necessary to the security of a free state

the right of the people to keep and bear arms, shall not be infringed.

The first clause places a very specific condition on the second, limiting the latter provisions significantly.

In its first major case on the amendment, the Supreme Court decided in United States v. Miller (1939) to uphold a portion of the National Firearms Act that required registration of sawed-off shotguns. The Court wrote, ''[i]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument (emphasis added). By stating that the 2nd amendment does not guarantee a right to own such a weapon, the Court in effect made the judgment that the government is permitted to place restrictions on such possession, or even prohibit possession all together.

D.C. v. Heller

In 2008, the Supreme Court abandoned precedent and prevailing understanding of the 2nd amendment to carve out a protection against government control over firearms. The ruling by the Court declared a District of Columbia law that prohibited the possession of handguns inside the District limits unconstitutional. The opinion noted, The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. However, the Court also specifically stated, nothing in our

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