- RIGHT TO BEAR ARMS: A FUNDAMENTAL CONSTITUTIONAL RIGHT
"The Second Amendment to the United States Constitution protects the
rights of law-abiding, responsible citizens to possess a handgun in the
home for the purpose of self-defense, and is fully applicable to the State
However, prior to the Supreme Court's decision in
McDonald v. City of Chicago
 in 2010, it was unclear whether the Second Amendment Right to Bear Arms
was a fundamental right that applied to the states. In 2010 the Supreme
Court took steps to protect this fundamental right and decided that "Self-defense
is a basic right, recognized by many legal systems from ancient times
to the present day, and . . . individual self-defense is 'the central
component' of the Second Amendment right"
 meaning that "the right to keep and bear arms [is counted] among
those fundamental rights necessary to our system of ordered liberty."
Furthermore, fundamental constitutional rights cannot be infringed upon
by Minnesota laws without a compelling state interest
 and the "standards of strict judicial scrutiny" are "reserved
for cases involving laws that interfere with the exercise of fundamental
rights and liberties explicitly or implicitly protected by the Constitution."
Because the right to bear arms is a fundamental right protected by the
U.S. Constitution which applies to the states through the Fourteenth Amendment
, any Minnesota law that interferes with that right must "be necessary
to achieve some compelling governmental purpose"
 and "it must also be shown that the statute uses the least burdensome
means of accomplishing its purpose."
 At any hearing or trial, the state bears the burden of proving this necessity
which is "'almost always insurmountable,' and a statute will
rarely survive the strict scrutiny test."
- LIMITATIONS ON THE RIGHT TO BEAR ARMS
Even with the recognition that the Right to Bear Arms is fundamental under
the U.S. Constitution, some limitations do remain on that right.
- Prohibition On Those Convicted Of A Felony
The most common reason that we see for an individual to have their gun
rights taken from them comes as a result of being convicted of a felony
crime of violence. The U.S. Supreme Court has upheld "'prohibitions
on the possession of firearms by felons" and in Minnesota, an
individual who has committed a crime of violence will be deprived
of the right to bear arms. These "felon-dispossession statutes
. . . are presumptively lawful because [according to the Supreme Court]
felons fall outside the scope of the Second Amendment's protection."
 Federal law also prohibits convicted felons from "possessing firearms,
ammunition, or explosives." And this ban will not allow the convicted
person to legally "ship, transport, possess, or receive a firearm
for the remainder of [his or her] lifetime."
- Prohibition On Those Arrested For A Violent Crime
Furthermore, Minnesota law allows a judge to determine whether an individual
arrested for a "violent crime" must surrender all firearms
as a condition of their release.
Therefore, a judge may require that an arrested person "surrender
to the local law enforcement agency all firearms, destructive devices,
or dangerous weapons owned or possessed by the person, and may not live
in a residence where others possess firearms", even if that person
has not yet been convicted of a crime.
- Other Constitutional Limitations
Additionally, Minnesota may infringe upon the mentally ill's right
to bear arms, may pass "laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings", and
"'laws imposing conditions and qualifications on the commercial
sale of arms.'"
III. WHAT CAN BE DONE: RESTORATION OF THE RIGHT TO BEAR ARMS
The penalty for violating these statutes can be extremely severe and may
include a $250,000 fine and 10 years imprisonment. Therefore, the
lifetime ban should be respected and those persons subject to the ban
should be very careful not to violate it. However, that does not mean
that there is nothing to be done. Hope still exists for an individual
who has been banned from possessing a gun for life. In fact, in Minnesota,
an individual who has been stripped of the right to own a gun may be able
to have that right restored to them.
A person who is prohibited from possessing a firearm because of a conviction
for a crime of violence can petition the court for restoration of the
right to possess a firearm. "The court may grant the relief sought
if the person shows good cause to do so and the person has been released
from physical confinement."
The term "good cause" is defined as "a reason for taking
an action that, in legal terms, is legally sufficient, and, in ordinary
terms, is justified in the context of surrounding circumstances."
In deciding this issue, therefore, the court will weigh the balance of
"public safety concerns … against the private interest of
[the petitioner]." Factors such as the petitioner's remorse
and acceptance of guilt; the number of years since the conviction; the
seriousness of the original felony conviction; personal and professional
reasons for wanting/needing a gun; the petitioner's record since the
ban was imposed; and, most importantly, public safety concerns will all
be considered in determining the restoration of an individual's gun
rights. Although this is not a simple or easy process, it may prove extremely
beneficial, both professionally and personally, for someone who would
like to seek the restoration of his or her gun rights.
The best way to fight against losing your right to bear arms is to hire
a capable attorney such as those who can be found at
Caplan & Tamburinoto defend you against any charge for a felony or violent crime. Call us at
612-444-5020 and visit our website at www.caplanlaw.com and let us help you protect
your constitutional rights.
Additionally, if your right to possess a gun has been taken from you and
you would like to have that right restored, call
Caplan & Tamburino at
612-444-5020 today to speak to an attorney who knows the law and can apprise you of
your rights. Finally, if you believe your gun rights have been unconstitutionally
infringed upon; contact
Caplan & Tamburino so that we can defend your rights against illegal state and federal interference.