The 2nd Amendment Guarantees the Right to Bear Arms

in 2008 the U.S. Supreme Court in a 5-4 decision, in the case of District of Columbia v. Heller, held that the Second Amendment established an individual's right to possess firearms. The ruling struck down a D.C. handgun ban that made any possession of handguns illegal as violating the right to bear arms. The majority based on their interpretations of the Founder's intent but did carved out exceptions such as restrictions on sawed-off shotguns or other weaponry that would not generally be used by law-abiding citizens. Also constitutional restrictions on gun possession extend to criminals and the mentally ill.

In Michigan, depending on the crime and the time since the conviction, you may have several options which would restore your right to own and carry a gun. Again, depending on the crime and the time since you lost your right to carry a weapon, you may also be able to obtain an CPL

Call Schmierlaw to see if we can help you restore your right under the 2nd Amendment to bear arms. Schedule a no-cost, initial consultation to see if you are eligible.


Columbia v Heller- Defining the 2nd Amendment

In Columbia v Heller the Us Supreme Court was asked to decide a case that had arisen out of Washington DC. The District had passed, what amounted to a prohibition on gun ownership by requiring registration. Yet getting registered was nearly impossible. The law was challenged by a set of plaintiffs assembled and funded by a progun advocacy group.

The majority decision was handed down by Judge Scalia who held that regardless that the opening line of the 2nd Amendment sates, “A well regulated Militia, being necessary to the security of a free State,” was a preamble and that the Constitution conferred a citizens’ right to bear arms.

Obviously his decision has both detractors and supporters depending on your point of view, but one thing is clear; that while the government can limit gun possession in certain instances, the right to bear arms is equal to the right of “free speech”. In short, the right to bear arms is not going away and until the Supreme Court is willing to take a new look at the issue, gun ownership can be limited but not unreasonably restricted.

Historical Basis for the 2nd Amendment

The right to bear arms is first adopted in 1689 in the first ever English Bill of Rights and then later adopted in the American Bills of Rights.

In 1680, the English monarch, King James II was returned to the throne in what is known as the Restoration. After he was restored to power and to insure his reign, the King outlawed local militias. Private ownership of weapons was banned and the King's power was enforced by the King's well-equipped army. It was with this mindset that the 2nd Amendment was adopted by the Founding Fathers.

Early Americans were rightfully fearful of a King who could disarm citizens in order to preserve their own power. As such, citizen soldiers were encouraged, even required, to possess a firearm. These citizen soldiers were expected to help protect the towns and villages where they lived from hostile natives, wild animals, or outlaws.

In addition, the idea that armed citizens could fight and resist government took root in the Revolution and is sill part of Michigan Law where individuals still have the right to resist, even with force, an illegal arrest.

There are Ways to Restore Your Right to Bear Arms

While government can not completely restrict gun ownership, Justice Scalia, who wrote the Heller decision, recognized that while the 2nd Amendment conferred the right to possess a firearm, like shouting fire in a crowded theatre, certain rights can be reasonably restricted. As such, there could be common sense restrictions in certain situations. In Michigan, possession of guns in certain areas like courthouses in prohibited and possession by certain persons is also prohibited

If you commit a felony in Michigan, you will lose you 2nd Amendment rights for a certain amount of time. Depending on the nature of the felony, if certain conditions are met and a certain amount of time has elapsed since your conviction, your rights can be automatically restored. With more serious felonies, gun rights can be restored pending a hearing with the gun board. In addition, guns rights can be restored after successfully completing a diversion program or getting an expungement or set-aside.

If you have lost your right to bear arms, contact Schmierlaw to discuss your case. We have experience in 2nd Amendment cases and will explore all the ways to restore your right to own and possess a firearm.

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