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Second Amendment law is a relatively new field of study, said a guest speaker at the Shelby County Republican Party’s monthly meeting on Thursday night.
Attorney Aaron J. Silletto of the Goldberg Simpson law firm out of Louisville said he has made a hobby of learning and understanding the Second Amendment and gave an informative presentation to more than 30 Shelby County Republicans on what exactly the 27 words that make up the Second Amendment mean in legal terms.
“Just a decade ago, when I was studying law in school, my constitutional law casebook didn’t even have a discussion at all on the Second Amendment,” Silletto said. “If you can imagine that..…not one case, not one bit of discussion, at all.”
The reason for that, Silletto said, was because at that point in time Second Amendment “law” didn’t really exist. Up until 2008, a case primarily concerning the Second Amendment never had reached the U.S. Supreme Court, and the meaning of the phrase that grants U.S. citizens the right to bear arms largely had been assumed.
That case was District of Columbia v. Heller, concerning a handgun ban in Washington D.C. that permitted citizens to own only certain kinds firearms but also required them to be unloaded, disassembled or trigger locked. The Supreme Court ruled, 5-4, that citizens of the federal enclave had a right, no different from free speech or the freedom to assemble, to protect “hearth and home.” The D.C. gun regulation made guns essentially unusable for that purpose and, as a result, was found to be unconstitutional.
Two years later, in McDonald v. Chicago, the Supreme Court would apply an almost identical ruling to an almost identical problem, this time applying for the first time the same rules to state law.
Silletto went on to break down the Second Amendment as it currently is understood by the legal community.
The first part, “a well regulated Militia, being necessary to the security of a free State,” Silletto said is understood as a purpose clause, identifying why the right is important.
The second half, “the right of the people to keep and bear arms,” is the more important part of the amendment, he said. Throughout the Constitution the words “the people” are used numerous times, every time recognizing an individual’s right to the freedom to do something.
To define the Second Amendment as only the right to participate in a militia as had long been thought before 2008 would be to change the words “the people” to mean something in the Second Amendment that it didn’t mean anywhere else in the document, Silletto said.
Because the Second Amendment exists for the means of self-defense, many gun bans are perfectly within the confines as the law. Just like free speech under the First Amendment comes with certain limits – hate speech for example is not protected – so too are there limits on the Second Amendment.
“The courts, what the Supreme Court in Heller did, was carve out a big exception to this right to keep and bear arms, saying ‘if the right has to do with self-defense, then weapons that aren’t customarily used for that purpose aren’t protected in the same way,’” Silletto said.
After breaking down the Second Amendment at the federal level, Silletto took the conversation to the state gun laws, specifically Kentucky’s, who has a long history of being the most favorable state legally towards firearms, he said.
Up until 1957, anything went for firearms as long as they were not concealed, Silletto said. Only in 1983, after a law prohibiting felons from purchasing and carrying firearms went to the Supreme Court and was found to be constitutional, have gun restrictions appeared in the state.
Silletto said he wasn’t for felons being able to have firearms, but he said he does take issue that the restriction seems to go fundamentally against the Kentucky Constitution, which lists seven “inherent and inalienable rights,” including the right to bear arms and worship God as we see fit.
“We value the right to bear arms so much that we put it on the same footing as our right to worship God,” he said. “And for the same reasons I don’t want the state government to tell me ‘you’ve been convicted of a felony, we are going to tell you how to practice your religion now.’ We all laugh at that, but it’s inherent, it’s inalienable. And in Kentucky so is your right to bear firearms...that’s why I think it’s an important issue. How we treat the right to bear arms in Kentucky determines how we treat those other rights.”