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MyraB
MyraB, Lawyer
Category: Criminal Law
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Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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My friend just got pulled over for speeding. He gave the officer

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My friend just got pulled over for speeding. He gave the officer permission to search his vehicle (I know he should not have consented) . My friend had his pistol and a loaded magazine in his center console. This resulted in his arrest. I thought that the 2nd Amendment which states that the right to bear arms shall not be infringed, was the supreme law of the land. In this case, the law appears to infringe on my friends rights to bear arms. Also, this brought up the point that now California law makes it a crime to open carry a firearm. This law and well as the law that cause the arrest, clearly violated the rights of the citizen under the 2nd Amendment. I do not understand how laws can be made that violate our constitution like this.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  MyraB replied 11 months ago.
Hello and thank you for your question. I am sorry to hear of your friend's situation.

Although the Second Amendment states that "the right of the people to keep and bear arms, shall not be infringed" through caselaw and interpretation of the Constitution the Federal government and the state are permitted to have licensing regulations. The regulations placed on the second amendment right are similar to the time, place and manner restrictions placed on the First Amendment right to free speech. If you want to have a parade, you need a permit. These types of restrictions are not intended to infringe on the right, but rather regulate the form rather than the substance.

I understand your frustration with the niceties of the law, especially when you or your friend is on the receiving end of what seems to be an infringement of the right to bear arms. One of the Supreme Court's recent and most notable decisions dealing with the amendment is District of Columbia v. Heller, 554 U.S. 570 (2008) which can be found here http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

I wish you and your friend well. Please let me know if you need further information and feel free to ask any follow up questions.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 2 other Criminal Law Specialists are ready to help you
Customer: replied 11 months ago.

I understand. Nevertheless, the First Amendment does not contain a clause like, "shall not be infringed." The framers thought carefully about the right of the people to bear arms. Any restriction on the right to bear arms in my opinion is an infringement. State laws like the ban on open carry in California clearly restrict my right to bear arms in public. Its not about obtaining a permit to open carry because there is no provision in the law for this purpose. I place 2nd Amendment laws in the same category as the Dread Scott decision and the recent SCOTUS decision concerning Obamacare. These rulings violate the very essence of our Constitution and Bill of Rights. The philosopher St. Augustine pointed out that unjust laws are not laws at all. Sadly, there does not appear to be anyone in the legal community to safeguard our Republic against those powerful politicians who would abrogate the Constitution for their benefit.

Expert:  MyraB replied 11 months ago.
Thank you for your response.

I don't disagree with you. One thing you do have to keep in mind though is that the Bill of Rights was purposefully written broadly to ensure ratification of the Constitution. It uses extremely broad language in all the amendments. So, it is always susceptible to interpretation, but it is also versatile in that it can accommodate changes in society and scientific advancements. It is important that the Constitution remains a living document and that it is protected everyday. As a criminal defense attorney I have the honor of defending the Constitution every day, usually the Fourth, Fifth and Sixth Amendments, but it is important for all citizens to be vigilant of their rights.

The NRA is very active in preserving Second Amendment rights and has useful information on how you can support your interpretation of the Second Amendment. They can be found at www.nra.org

I wish you well. Let me know if I can be of further assistance.

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