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Memorial for Gun Victims

Facts and Policies

Questions and Answers

DOES THE CONSTITUTION GIVE ME THE RIGHT TO OWN A GUN?

No. The Second Amendment to the United States Constitution says, AA 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.@ For a hundred years, courts interpreting the Second Amendment have agreed, without exception, that the purpose of the Amendment was to prevent the federal government from interfering with the ability of the states to outfit and maintain organized militia.1 The Second Amendment does not, and never did, protect the private ownership of guns for private purposes.2 The United States Supreme Court decides what federal constitutional provisions mean, and the Court has never invalidated a gun control ordinance on Second Amendment grounds.

When the Constitution was written, the organized militia comprised the entire able-bodied, male, adult citizenry, who were responsible for providing their own weapons. Today, however, as the Supreme Court has stated, this citizen militia has been replaced by the National Guard, which is armed by the federal government. Although there is a lively and legitimate public debate about whether citizens ought to have a right to possess guns for exclusively private purposes, the U.S. Constitution does not recognize any such right.3 Furthermore, the Second Amendment applies only to federal governmental regulation, and does not restrict the ability of state or local governments to regulate guns, consistent with their powers to protect public health and welfare.3

References:

1. U.S. v. Miller, 307 U.S. 174 (1939) (ban on possession of sawed-off shotgun not unconstitutional, since such a gun is not reasonably related to preservation of efficiency of well-regulated militia); U.S. v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992) (interpreting Miller to mean that plaintiff must prove that his or her possession of weapon is reasonably related to a well-regulated militia, which does not include membership in a private, non-governmental military organization); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982), cert. denied 464 U.S. 863 (1983) (Second Amendment does not guarantee a right to keep and bear handguns).

2. Ehrman and Henigan, D. The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately? University of Dayton Law Review, Volume 15, page 5 (1989).

3. Vernick, J.S.and Teret, S., Firearms and Health: The Right to Be Armed with Accurate Information about the Second Amendment. American Journal of Public Health, Volume 83, pages 1773-1777 (1993).

Further Reading:

Legal Community Against Violence. Addressing Gun Violence Through Local Ordinances: A Legal Resource Manual for California Cities and Counties. San Francisco: LCAV (1996).

Wills, G. Why We Have No Right To Keep and Bear Arms. New York Review of Books, Volume 42, Number 14, page 62 (1995).

Resources:

Center to Prevent Handgun Violence, 10951 West Pico Blvd., Suite 100, Los Angeles, CA 90064, (310) 446-0056 (office), (310) 475-3147 (fax), http://www.handguncontrol.org

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