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Can I Raise a Second Amendment Defense to My Criminal Gun Charge?

On Behalf of | Apr 19, 2018 | Uncategorized

Guns and potential changes to state and federal gun laws are very much in the news these days. The “March For Our Lives” movement which has sprung up following the Parkland, Florida shootings in February 2018 is seeking more restrictions on the ability of Americans to obtain and possess firearms, and gun rights advocates are concerned that such further restrictions will indeed be the result of this movement.


The Second Amendment to the U.S. Constitution does of course guarantee the right to bear arms, and that is the primary legal response to calls for more gun control, but the fact is that there are already numerous gun restrictions at both the state and federal level. Which raises the question of whether it is potentially successful for a person charged with violating state or federal gun laws to raise the Second Amendment as a defense at trial.

The Limits of the Second Amendment

First off, let’s be clear not to understate the importance and breadth of the Second Amendment, which certainly does guarantee rights to firearms that are far greater than in most other countries. But in the same way that the First Amendment right to free speech does not guarantee you the right to say whatever you want, whenever you want (i.e. you cannot lie in advertising or threaten to hurt someone else), there are also limits on the Second Amendment.


In the most significant U.S. Supreme Court case on the Second Amendment in recent years, the late Justice Antonin Scalia (himself a strong proponent of conservative values) wrote in U.S. v. Heller (2008) that:


“Like most rights, the right secured by the Second Amendment is not unlimited….nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”


Notably, though, the Supreme Court did rule in Heller that a restriction in Washington D.C. against the ability of residents to own and possess handguns was indeed unconstitutional under the Second Amendment, as the restriction did violate the specific right to self-defense guaranteed by the Second Amendment.

Take a Smart Approach to Your Criminal Defense

Thus, coming back to the question posted by this article, there are certainly times in which a state or federal law prohibiting gun rights is indeed unconstitutional under the Second Amendment (as was the case with the D.C. prohibition on handguns), but attempting to raise that defense will not always work.


If you are facing a gun charge, you need to take a smart approach to defending yourself and your future, and simply hoping to make a political statement in court about your constitutional right to a gun is probably not your best strategy. State and federal judges presiding over criminal cases must follow established law, and the Supreme Court has spoken somewhat clearly in this area that many restrictions on gun rights are indeed constitutional.


Instead, work with an experienced criminal defense attorney who can pursue all potential legal strategies – such as those relating to the sufficiency of the evidence presented against you, working towards a favorable agreement with prosecutors, and/or determining whether police violated your rights – to reach a more promising outcome.

Experienced Criminal Defense in Your Oklahoma Gun Charge

Oklahoma City criminal defense attorney Patrick Quillian is a former Oklahoma district attorney who relies on his years of experience in prosecuting cases to provide the best possible defense for all defendants. If you are facing criminal charges and/or investigation for a felony or misdemeanor in Oklahoma, contact the office of J. Patrick Quillian, Attorney at Law, today at 405-418-8888 to schedule a free consultation to see what his criminal defense team can do for you.


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