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Michael F. Kraemer| The Providence Journal

Michael F. Kraemeris a retired Rhode Island attorney anda volunteer with the Rhode Island Coalition Against Gun Violence who has testified before the judiciary committees of the Rhode Island House and Senate.

The right to bear arms established under the Second Amendment to the United States Constitution is often misunderstood. Given the proposed firearms legislation pending in the General Assembly, it is important to understand what the law does and does not protect.

Q:What does the Second Amendment protect?

A:The U.S. Supreme Court ruled in District of Columbia v. Heller that an individual has the right to own and maintain a handgun at home for personal protection. The Court did not establish any other right regarding gun ownership, beyond "the right ... to use arms in defense of hearth and home."

Q:Is this right unlimited?

A:No.Justice Antonin Scalia stated in Heller: "Like most rights, the right secured by the Second Amendment is not unlimited. [The right] is not a right to keep and carry a weapon whatsoever and for whatsoever purpose."

Q:Does the Second Amendment create a right to carry a weapon, openly or concealed, outside of one's home?

A:No."The core Second Amendment right is limited to self-defense in the home." Gould v. Morgan.

Superior Court Judge Robert D. Krause recently wrote a lengthy and scholarly opinion in State of Rhode Island v. Ortiz discussing this issue. While this is a lower court decision, hisopinion provides a detailed review of the appellate cases before rejecting defendant's claim to a constitutional right to carry a firearm outside of the home without a permit.

The opinion notes that "states with more restrictive licensing schemes for the public carriage of firearms experience lower rates of gun-related homicides and other violent crimes." Judge Krause deflated the "good guy with a gun" myth as "using firearms for self-defense in crowded public areas risks fatalities and serious injury to innocent bystanders." He concludes that "firearms create or exacerbate accidents and deadly encounters."

Q: Can the General Assembly ban assault weapons?

A:Yes. Federal and state laws prohibit owning automatic weapons and in many states ban semi-automatic weapons such as the AR-15. No court has concluded that an individual has the right to own assault weapons.

Every court that has ruled on assault weapons bans reached the conclusion that such prohibitions are constitutional. For example, the Massachusetts ban on assault weapons was upheld in Worman v. Healey. In a lengthy opinion surveying Supreme Court jurisprudence and decisions from other appeals courts, a three-judge panel found the Massachusetts law did not violate the Second Amendment. The opinion was written by Rhode Islander Judge Bruce Selya. One of the three judges signing on to the opinion was David Souter, retired Associate Justice of the U.S. Supreme Court, sitting by designation.

Q:Is a ban on high capacity magazines constitutional?

A:Yes. Six out of seven federal appeals courts ruling on HCM bans have found them to be constitutional, including the 1st Circuit in the Worman case.

The Vermont Supreme Court in State of Vermont v. Mischrecently unanimously upheld a law banning HCMs as constitutional under the Vermont Constitution. The court noted the state legislature's reliance on studies that showed "extensive evidence that 'the use of LCMs [large capacity magazines] in mass shootings increases the number of victims shot and the fatality rate of struck victims,'" that "large capacity magazines are associated with many of the deadliest shootings in the United States," and that between 2009 and 2018, shootings involving HCMs led to five times the number of people shot per mass shooting.

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Opinion/Kraemer: A primer on the Second Amendment - The Providence Journal