The Second Amendment May Protect Some Weapons or Gun Charges if the Items are Kept in the Home

In 2008, the United States Supreme Court decided the case of District of Columbia v. Heller struck down a law that related in part to a prohibition against the possession of a hand gun. With pointed clarity, the Court said that self defense “was the central component of the [Second Amendment right] itself” and “the need for defense of self, family and property is most acute” in the home. At another point, the Heller Court observed that the “core” of the Second Amendment is the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Other Courts have concluded that the “Second Amendment guarantees are at their zenith within the home.” Clearly, the Court in Heller concluded that the single most important lawful purpose to be put to a weapon is the fundamental right to use it in self defense and, that is especially so in one’s home.

Although the issue in Heller related, in part, to a law that prohibited the possession of handguns, the court’s ruling was much more expansive because it held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and specifically rejected the notion “that only those weapons useful in warfare are protected.” According to Heller, the word “arms” as referenced in the Second Amendment include “anything that a man wears for his defence or takes into hands, or useth in wrath to cast at or strike another.” The weapon can be “carr[ied] . . . for the purpose of offensive or defensive action.” Thus, the Second Amendment right-to-bear-arms applies to all weapons “typically possessed by law abiding citizens for lawful purposes,” and certainly home and self defense is now a lawful purpose under Heller.

The Heller Courts’s broad based definition of “arms” was tempered by other language, however. Those passages follow:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” (citation omitted). We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” (citations omitted).

Thus, while possession of most weapons in the home may not be criminalized, the open question is whether these weapons are “dangerous and unusual.”

Criminal cases relating to the unlawful possession of a weapon or gun offense are very serious charges. If you are subject to an investigation or criminal accusation involving a weapons or gun offense, you need to immediately engage a criminal defense attorney. Frank T. Luciano has represented individuals accused of weapons and gun offenses in Bergen County and Passaic County for over 40 years. He is a member of an organization conceived to protect the Second Amendment right to bear arms and to exert these rights in all weapons and gun crime cases. He is also a longtime member of the National Association of Criminal Defense Attorneys (NACDL) and a lifetime member of the legal committee of the National Organization for the Reform of Marijuana Laws (NORML). Give yourself the best chance at a positive legal outcome by contacting Frank T. Luciano’s New Jersey law office immediately at 973-471-0004. You should also check out the Testimonials page of this website to read what Frank’s clients have to say about him.

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From a former client charged with a serious weapons offense

"At the time, I was mortified because, having only worked against you in the Prosecutor’s Office, I couldn’t picture being on the same side. Frank, I want to thank you for the pleasure of having worked with you over the past years. I have learned a great deal from you. Most importantly, I learned that cases were not always as black and white as I thought they were when I worked for the Prosecutor’s Office. You are a wonderful attorney who not only works hard, but also cares deeply about his clients. Frank, I think you are the best."

From a former investigator of a county prosecutor’s office and retired private investigator

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