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Understanding the Second Amendment

The Second Amendment to the United States Constitution was passed by Congress in 1789 and ratified in 1791. The amendment states that “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.” Learn about the history, laws, and regulations related to the Second Amendment to be a knowledgeable and well-informed gun owner.

The History of the Second Amendment

In the era of the Founding Fathers, many believed that governments are prone to use soldiers to oppress the people. The founders thought this risk could be controlled by permitting the government to raise armies only when needed to fight foreign enemies. For other purposes, such as fighting invasions or responding to emergencies, the government must rely on a militia formed of ordinary citizens who supplied their own weapons.

During the Revolutionary War, however, the founders discovered that militia forces could not be relied on for national defense. The Constitutional Convention then decided that the federal government should have total authority to establish peacetime standing armies and to regulate the militia. When this was proposed, Anti-Federalists argued that the proposed Constitution would take away states’ ability to protect themselves from the federal government. Federalists, on the other hand, claimed that fears of oppression by the federal government were overblown because at the time, the American people were already armed and it would be near impossible for the federal government to subdue them anyway.

Out of this debate came two shared ideologies which eventually formed the basis of the Second Amendment. First, that the new Constitution should give the federal government near total authority over the army and militia. Second, that the federal government will not have the authority to disarm individual American citizens. Due to widespread agreement on these two ideologies, the Second Amendment was easily accepted and adopted into the Constitution.

Today, while individual states have their own gun laws and regulations, it was ruled in McDonald v. City of Chicago (2010), that the Fourteenth Amendment to the Constitution protects against state infringement of the same individual right to bear arms that is protected from federal infringement by the Second Amendment. Therefore, the Second Amendment is applicable not only to the federal government, but to state governments as well.

Gun Laws by State

Even though the Second Amendment definitively protects an individual’s right to keep and bear arms, the law is open to much interpretation and as a result, states across the country have their own gun laws and regulations.

Read up on seven gun regulations and learn whether they’re enacted in your state.

  • Red flag laws. States with red flag laws allow law enforcement to confiscate firearms from any person deemed by a judge to present a threat to themselves or others. States with red flag laws include Washington, Oregon, California, Indiana, and Connecticut.

  • Relinquishment laws. States with relinquishment laws mandate that any person who becomes disqualified from owning firearms must relinquish their weapons. States with this law include Hawaii, California, Illinois, Pennsylvania, New York, Massachusetts, and Connecticut.

  • Assault weapons ban. States with this law prohibit the sale of assault weapons. California, Hawaii, New York, New Jersey, Maryland, the District of Columbia, Massachusetts, and Connecticut have assault weapon bans.

  • High-capacity magazine ban. Bans the sale of assault pistol ammunition and other high-capacity magazines. States with this ban include California, Colorado, New York, New Jersey, Maryland, the District of Columbia, Massachusetts, and Connecticut.

  • Prohibitions for high-risk individuals. With this regulation, firearm possession is prohibited for those convicted of a felony or a violent misdemeanor, those with a history of mental health problems, drug or alcohol issues, or considered by the court to be dangerous. All 50 states have enacted this regulation except Idaho, Montana, Indiana, Louisiana, Vermont, and New Hampshire.

  • Prohibitions for individuals with domestic violence convictions. Firearm possession is prohibited for individuals convicted of domestic violence or stalking and those with a domestic violence-related restraining order. States with this regulation include all states except Alaska, Idaho, Montana, North Dakota, Wyoming, New Mexico, Kansas, Oklahoma, Missouri, Kentucky, Arkansas, Mississippi, Michigan, Ohio, South Carolina, Georgia, and Rhode Island.

  • Mandatory universal background checks. States with mandatory background checks require a background check either at point of purchase or through a permit requirement. States with universal background checks include Hawaii, Washington, Oregon, California, Nevada, Colorado, Nebraska, Iowa, Illinois, Michigan, North Carolina, Pennsylvania, New York, New Jersey, Maryland, the District of Columbia, Massachusetts, Connecticut, Delaware, Vermont, and Rhode Island.

California Gun Laws

California gun owners face the strictest regulations in the country. Since California gun laws change frequently, it’s important for gun owners to stay informed. Below are current firearms laws enacted in California.

Persons prohibited from possessing firearms.

  • Any person convicted of a felony.

  • Any person adjudicated to be a mentally disordered sex offender.

  • Any person found by a court to be mentally incompetent to stand trial.

  • Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility.

  • Wards of the juvenile court until reaching the age of 30.

  • Any person denied firearm possession as a condition of probation.

  • Any person addicted to the use of narcotics.

Sales and transfers of firearms.

  • In California, only licensed California firearms dealers who possess a valid Certificate of Eligibility are authorized to engage in the retail sale of firearms. There is a mandatory 10-day waiting period before the dealer can deliver the firearm to the purchaser. During this 10-day waiting period, the California Department of Justice (DOJ) conducts a background check to ensure the purchaser is not lawfully prohibited from possessing firearms.

  • Generally, all firearms purchasers must be 18 years of age to purchase a long gun and 21 years of age to purchase a handgun. Purchasers must be a California resident with a valid driver’s license or state ID card issued by the California Department of Motor Vehicles.

Firearms in the home or business.

  • Any person over the age of 18 who is not prohibited from possessing firearms may have a loaded or unloaded firearm at their place of residence or on private property lawfully owned by the person.

Use of lethal force in self-defense.

  • It is permissible to use lethal force when necessary to resist the attempt to commit a forcible and life-threatening crime, provided that a reasonable person in the same situation would believe that (a) the person killed intended to commit a life-threatening crime, (b) there was imminent danger of such crime being accomplished, and (c) the person acted under the belief that such force was necessary to save themselves from death or a life-threatening crime. Examples of forcible and life-threatening crimes include murder, mayhem, rape, and robbery.

Charged with a Weapons Crime? Hire the Right Defense

Although the Second Amendment protects individuals’ right to keep and bear arms, it’s important to be aware of your state’s specific gun regulations to prevent potential weapons charges. If you get charged with a weapons-related offense, it’s important to hire a qualified criminal defense attorney.

Virginia L. Landry, also known as California’s Gun Queen, is extremely passionate about fighting for the rights of gun owners throughout the state. With over 30 years of criminal defense experience, she’s prepared to provide you with qualified legal representation.

If you’ve been charged with a weapons-related offense in California, contact the Law Offices of Virginia L. Landry at (888) 272-6668 for a free consultation today!