In 2004 the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment guarantees an individual right to possess a gun. It held that the District of Columbia ordinance which made possession of a gun illegal in most cases unconstitutional. In response the District rewrote it’s ordinance placing many restrictions on gun ownership but making it legal. Dick Heller the plaintiff in the original case, together with several other people sued the District of Columbia claiming that its registration requirements in the post Heller ordinance and its ban on assault weapons violated the Second Amendment. The District Court for the District of Columbia granted the District summary judgement. Heller and his fellow plaintiffs appealed the District of Columbia Court of Appeals. The appellate court remanded the case for further consideration of many of the conditions for obtaining registration and upheld the assault weapon ban.

The D.C. Circuit held that in determining the constitutionality of a particular ordinance under the the Second Amendment the first issue is whether it impinges on a right protected by the Amendment. Then it is necessary to determine whether the provision passes muster under the appropriate level of constitutional scrutiny. The Supreme Court made clear in Heller that a mere rationality test is insufficient. It must be either an immediate level of scrutiny or strict scrutiny. The D.C. Court ruled that the more the measure impinges upon the core value of the Second Amendment the higher the level of scrutiny. Where an ordinance, such as the original District of Columbia ordinance bans core activity a strict level of scrutiny is mandated. But where provisions of the registration requirement or ownership of a particular type of gun is in question an intermediate level of scrutiny is sufficient.

Since registration has historically been accepted the D.C. Circuit upheld simple registration. But since the D. C. ordinance included many unique provisions ¹ the court remanded the case to the District Court to determine if there was sufficient evidence to meet an intermediate scrutiny test. Under intermediate scrutiny the District must show that the limitations on the core rights substantially relate to an important governmental objective.

Since assault rifles impinge on a core value but do not prohibit gun possession the Court also found that it must meet intermediate scrutiny. In the case of assault rifles the court found that there was sufficient evidence to uphold the ban. There is only limited evidence that assault rifle are used for core activity (self defense or hunting) and there is sufficient evidence that they are used by criminals and in the killing of law enforcement officers.

The Fifth Circuit, in United States v. Portillo-Muniz faced the question, this week, as to whether undocumented aliens are covered by the Second Amendment.

Armando Portillo-Muniz was charged with possession of a firearm by an undocumented individual in violation of 18 U.S.C. § 922(g)(5). He had a .22 caliber handgun in the center console of his vehicle.

The Court found that undocumented aliens are not covered by the Second Amendment. The Second Amendment, like the First Amendment and the Fourth Amendment refers to the rights of the people. The court held that the “people” does not include undocumented aliens. The Court pointed out that the Supreme Court in District of Columbia v. Heller which upheld the Second Amendment right to possess a gun referred to “law-abiding, responsible citizens to use arms in defense of hearth and home.” The majority opinion held that this does not applied to undocumented aliens who committed the misdemeanor of entering the country without papers.

Judge Dennis dissented from the majority’s holding. He pointed out that the Supreme Court in United States v. Verdugo-Urquidez interpreted the word “people” in the Fourth Amendment context as protecting aliens who “have come within the territory of the United States and developed substantial connections with this country.” Portillo-Muniz entered the country voluntarily. He worked steadily and with the exception of entering the country illegally he complied with the country’s laws. He would remand the case with instructions to the trial court to determine if 18 U.S.C. § 922(g)(5) violates the Second Amendment.

The Eleventh Circuit Court of Appeals in United States v, Rozier upheld laws charging possession of a weapon by a convicted felon against Second Amendment claims.

Eenie Austin, the mother of Christopher Rozier’s child arrived at his house in time to see his current girl friend holding a butcher knife to Rozier’s neck. Austin joined the fray and threw a concrete statute, hitting him in the face. At this point he pulled out a gun to protect himself. The decision does not say who called the police but they arrived later in the day with a search warrant. They searched the residence and found crack cocaine, marijuana, and ammunition. A gun was found buried in the yard.

Rozier was charged with possession of a gun and ammunition by a convicted felon in violation of 18 United States Code Section 922(g)(1) and since he had three major prior drug convictions he was sentenced under the Armed Career Criminal Act to 210 months in prison.

In District of Columbia v. Heller the Supreme Court held that “the Second Amendment conferred an individual right to keep and bear arms.” But Heller also said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .” Based on this language the Eleventh Circuit found that certain classifications of people, include convicted felons may be denied Second Amendment rights.

The First Circuit Court of Appeals found the Federal ban on juveniles possessing firearms to be constitutional despite claims that it violates the Second Amendment under Heller and that it is unconstitutional under the Commerce Clause.

The Court found that the prohibition in 18 U.S.C. Section 922(x)(2)(A) which limits possession of handguns by juveniles, with the exception of their use for hunting, self defense, and national guard duty, not to violate the Second Amendment. It points out that the Federal government has prohibited juveniles from possessing handguns since 1994 and that some states limited the sale of guns to juveniles as early as the latter part of the Nineteenth Century. Furthermore the founding generation limited the possession of guns by certain groups, in particular convicted criminals and the insane. From these examples the Court draws the conclusion that the founders would have approved of Section 922(x)(2)(A) and that therefore it does not violate the Second Amendment.

The Court also found that Congress did not violate the Commerce Clause when it passed the Youth Handgun Safety Act. Citing United States v. Lopez, 514 U.S. 549 (1995) the Court found that the Commerce Clause provided Congress with three types of power.

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Furthermore in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997) the First Circuit upheld the Youth Handgun Safety Act on the grounds that sales of firearms to juveniles affected interstate commerce and the power to ban the possession of firearms by juveniles is a correlated power. The First Circuit found that nothing in Heller affected Cardoza which remains good law.

Thus the court found that the limited ban on possession of firearms by juveniles in Section 922(x)(2)(A) to be constitutional.