There's No Second Amendment Right to Bear a Specific Arm

By Robyn Hagan Cain on March 16, 2012 | Last updated on March 21, 2019

Citizens have a Second Amendment right to bear arms in a visceral sense. According to the Fifth Circuit Court of Appeals, the Second Amendment does not extend to a right to bear a specific arm, reports The Wall Street Journal.

This week, the New Orleans-based court ruled that the Crescent City's police did not violate a man's Second Amendment rights by keeping his lawfully-seized gun after the district attorney refused charges against him.

One month before his July 2008 arrest, New Orleans police seized Errol Houston's Glock 22 .40-caliber pistol. Approximately a month later, the district attorney entered nolle prosequi (abandonment of prosecution) on the charges against Houston, but the city didn't return the pistol.

Almost a year after his arrest, the city still had not returned Houston's gun, despite multiple requests. Houston sued, claiming violations of the right to keep and bear arms and of due process, and seeking the return of his firearm.

Houston's claims were dismissed under Rule 12(c).

The district court ruled that retention of the firearm was "reasonable ... because firearms are needed as evidence in instituting criminal prosecution" and that Houston "does not have a Second Amendment right to the particular firearm seized." The lower court further noted that law enforcement has a "compelling interest in seizing weapons pursuant to a lawful arrest and as evidence of crimes" and "narrowly tailors such seizures" accordingly.

The Fifth Circuit Court of Appeals agreed.

Writing for a split, three-judge panel, Judge Rhesa Hawkins Barksdale said that some regulation of firearms is beyond the scope of the Second Amendment. "The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense."

Okay. We'll buy that argument, but at what point should police have to return Houston's gun? How many times can the DA opt not to charge him before keeping the gun becomes a deprivation of due process?

Related Resources:

Houston v. City of New Orleans (Fifth Circuit Court of Appeals)
Fourteenth Amendment Incorporates Second Amendment Right to Bear Arms (FindLaw's Supreme Court Blog)
The Supreme Court's Blockbuster Second Amendment Ruling: What the Court Resolved and What it Left Open (FindLaw)