3.5: The Right to Bear Arms

Although the Second Amendment of the federal constitution specifically references a right to “keep and bear arms,” the US Supreme Court provided little guidance as to its meaning until recently. The Second Amendment provides “[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.” The Alaska Constitution contains a similar provision. Alaska Const. Art. 1, §19.

In 2008, the US Supreme Court explored the meaning of the Second Amendment and its effect on the personal possession of firearms and gun control statutes. See District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the US Supreme Court affirmed the lower court’s decision of striking down provisions of the Firearms Control Regulations Act of 1975. The Court struck the portions that banned the possession of handguns and mandated that all legal firearms be kept unloaded and disassembled while in the home. See id. at 635. Although the District of Columbia argued that the Second Amendment only applies to the militia, the US Supreme Court emphasized that the Second Amendment is an individual right and is not subject to complete governmental regulation. The Court grounded its analysis in the inherent right of self-defense, noting that self-defense is a central component of the Second Amendment and a part of the fabric of our nation. Seeid. at 628.

Although monumental, the Heller ruling is also narrow. The decision specifically recognized that the “right secured by the Second Amendment is not unlimited.” See id. at 626. The Second Amendment does not prohibit firearms restrictions on felons, the mentally ill, possession in or near schools or government buildings, and the commercial sale of firearms. The Heller decision also failed to extend the Second Amendment’s protections to the states (Washington, DC, where the case occurred, is a federal enclave).

Two years later, in McDonald v. Chicago, 561 U.S. 742 (2010), the US Supreme Court reviewed the city of Chicago’s handgun ban. In McDonald, the Court extended the Heller ruling to the states, holding that the Second Amendment applies to the states via selective incorporation. However, McDonald reemphasized the Heller exceptions of firearms restrictions on felons, the mentally ill, possession in or near schools or government buildings, and the commercial sale of firearms.

Example of an Appropriate Restriction on Firearms

Dirk is a public middle school janitor. Occasionally, with the permission of the principal, Dirk stays overnight in an outbuilding on campus when he works a particularly late shift. Dirk wants to keep a handgun in the outbuilding, for protection. If Dirk’s state has a statute prohibiting the possession of a handgun within one mile of any public school, Dirk cannot keep a handgun in the outbuilding, even if he believes it is necessary for self-defense. Heller and McDonald protect an individual’s right to possess a handgun in the home for self-defense. This precedent specifically exempts firearm possession near schools. Unless newer precedent expands the ruling to include firearm possession near schools, the statute in Dirk’s state is constitutional.

Lapitre v. State, 233 P.3d 1125 (Alaska App. 2010)

In the following case, the Alaska Court of Appeals addresses Alaska’s felon-in-possession criminal statute post-Heller.

233 P.3d 1125
Court of Appeals of Alaska.
Steve Claudy LAPITRE, Appellant,
v.
STATE of Alaska, Appellee.
No. A–9973.
June 18, 2010.

BOLGER, Judge.

Steve Claudy Lapitre appeals his conviction of misconduct involving weapons, contending that [… Alaska’s] felon-in-possession statute is unconstitutional[.]

Background

Anchorage Police Sergeant Christopher Sims observed a vehicle driving erratically and broadcast an alert. Police Captain William Miller pulled the vehicle over, asked Lapitre for his license and registration, and then handed over the stop to the control of Officer Arthur Anderson. Upon a search of the vehicle, Anderson found a loaded nine-millimeter Glock handgun under some papers on the floor of the front passenger seat.

[…]

The Constitutionality of the Felon–In–Possession Statute

Lapitre was convicted of third-degree misconduct involving a weapon for being a felon in possession of a handgun. He now argues that this statute is unconstitutional under several provisions of the federal and Alaska constitutions because it prohibits all felons from possessing handguns and does not distinguish those likely to reoffend….

Following Lapitre’s 2007 conviction, the United States Supreme Court held that the Second Amendment protects an individual’s right to bear arms [in D.C. v. Heller, 554 U.S. 570 (2008)]. But the Court specifically limited the application of its holding as applied to convicted felons, noting: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”

Based on this limitation, the federal circuits considering the issue have held that the federal statute prohibiting a felon from possessing a firearm is consistent with the constitutional right to bear arms. [internal citations omitted]. These cases suggest that even if the Second Amendment restricts inconsistent state laws, it does not invalidate the Alaska felon-in-possession statute.

[…]

An individual’s right to bear arms is also protected by a 1994 amendment to the Alaska Constitution. But in Wilson v. State, [207 P.3d 565 (Alaska App. 2009)] we held that the felon-in-possession statute is consistent with this individual right to bear arms. [Lapitre also argues that the felon-in-possession statute impermissibly discriminates since it prohibits non-violent felons from possessing firearms.] […] [But], it is not at all obvious that Lapitre may challenge the statute as applied to nonviolent felons. Lapitre has a lengthy history of gun violence. At this point, Lapitre cannot reasonably argue that he should be allowed to possess a handgun: he is a violent felony offender who is likely to commit further violent offenses.

In conclusion, Lapitre … has not shown that the felon-in-possession statute is unconstitutional. We therefore AFFIRM the superior court’s judgment.

Figure 3.7 The Second Amendment

Exercises

Answer the following questions. Check your answer using the answer key at the end of the chapter.

1. Anchorage Police Officer Mark Rober made a routine traffic stop of a car driven by Steve Allen in Anchorage. During the traffic stop, Rober discovered that Allen was in possession of a loaded .45 revolver and that Allen had previously been convicted of a felony – theft in the second degree, a non-violent felony. Allen explains that his prior felony was for fraudulently obtaining unemployment benefits. Allen is 67-year-old and lives in a cabin on a homestead. Allen lives a subsistence lifestyle and needs the handgun for personal protection. Nonetheless, Officer Rober charges Allen with being a felon-in-possession (AS 11.61.200(a)(1)). Allen wants to challenge the constitutionality of the statute; Allen wants to assert the statute is unconstitutional under both the U.S. Constitution and Alaska Constitution since the statute does not differentiate between violent and non-violent felons. Will Allen be successful? Explain why or why not?
2. Assume that a state court order forbids the defendant (a certified police officer) from possessing a handgun while on felony probation. The defendant wishes to resume their career as a police officer, but the state court order makes it impossible. Assume the state court order is challenged in federal court. How will the state court order be analyzed under recent US Supreme Court precedent interpreting the Second Amendment?