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June 4, 2009

California Court Upholds Ban on Assault Weapons:

Filed under: Los Angeles Criminal attorney — Tags: , , — fayarfa @ 10:40 pm

The Second Amendment to the Constitution of the United States 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 United States Supreme Court held, in District of Columbia v. Heller (2008) 554 U. S. [171 L.Ed.2d 637], that “the [District of Columbia's] ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” (Id. at p. 683.)

In so holding, the Court explained that the Second Amendment codified a pre-existing right of the individual “to possess and carry weapons in case of confrontation.” (Id. at p. 657 ["The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed'"].)

However, the Heller Court pointed out that, like the First Amendment’s right to freedom of speech, the Second Amendment’s right to bear arms is not unlimited: “Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” (Id. at p. 659.)

Recently, in People v. James (2009) ___ Cal.App.4th ___, the California Court of Appeal held that possession of an assault weapon in California remains unlawful and is not protected by the Second Amendment to the federal Constitution as construed by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. [171 L.Ed.2d 657] (Heller).

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