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Caplan & Tamburino Law Firm: Defending Your Right to Bear Arms in Minnesota

Posted By Caplan & Tamburino Law Firm || 11-Oct-2013

  1. 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 of Minnesota." [1]

However, prior to the Supreme Court's decision in McDonald v. City of Chicago [2] 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" [3] meaning that "the right to keep and bear arms [is counted] among those fundamental rights necessary to our system of ordered liberty." [4]

Furthermore, fundamental constitutional rights cannot be infringed upon by Minnesota laws without a compelling state interest [5] 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." [6]

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 [7], any Minnesota law that interferes with that right must "be necessary to achieve some compelling governmental purpose" [8] and "it must also be shown that the statute uses the least burdensome means of accomplishing its purpose." [9] 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." [10]

  1. 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.

  1. 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"[11] and in Minnesota, an individual who has committed a crime of violence[12] will be deprived of the right to bear arms.[13] These "felon-dispossession statutes . . . are presumptively lawful because [according to the Supreme Court] felons fall outside the scope of the Second Amendment's protection." [14] Federal law also prohibits convicted felons from "possessing firearms, ammunition, or explosives."[15] 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."

  1. Prohibition On Those Arrested For A Violent Crime

Furthermore, Minnesota law allows a judge to determine whether an individual arrested for a "violent crime"[16] must surrender all firearms as a condition of their release.[17]

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.[18]

  1. 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.'" [19]

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.[20] 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.[21]

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.[22] "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."[23]

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."[24] In deciding this issue, therefore, the court will weigh the balance of "public safety concerns … against the private interest of [the petitioner]."[25] 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.

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