Expert: Robert P. Firriolo - 11/17/2010

Question
I am relatively new to truly understanding my rights a an American Citizen. So please don't judge me on my ignorance. How does the federal and state government have the right to modify or write laws concerning who loses the right to bear arms? I think it was felons, mentally incompetent, and drug addicts. Where these people not present in society when the bill rights was created? And where they excluded from these rights from the beginning or where they protected as American citizens?

Answer
This is a complicated question not really suited to this short question-and-answer format. However, very generally speaking, the concept in American law (and most other legal systems around the world) is that no right is absolute. The classic (and overused) example is that you do not have the right to shout "Fire!" in a crowded theater when there is no fire. Similarly, people who are deemed a threat to society or who have committed certain serious offenses lose rights, such as the right to vote, the right to hold public office, and the right to keep and bear arms.

Further complicating this analysis is that early federal court decisions on the Second Amendment to the Constitution were misread and misapplied so that until recent years, most courts did not treat the right to keep and bear arms as an individual right, and one which applied to the states. This all changed very recently with two decisions of the US Supreme Court which ruled that the right to keep and bear arms is an individual right which applies to both the federal government and state governments. However, even those decisions said that they did not cast doubt on the power of governments to deprive felons and the mentally ill from possessing firearms.

So right now it is the "law of the land" that the right to bear arms does not extend to certain classes of people considered to have lost that right. Whether all of the particular groups currently considered prohibited -- including those convicted of certain misdemeanors -- will remain prohibited upon review by the courts is a question that will be decided in the courts in the coming years. There will be a lot of court cases which will decide which gun control laws are allowed to stand and which are struck down as unconstitutional, in the coming years.