It’s almost impossible to have a level-headed conversation about guns in America these days, which is a shame because gun violence has spiraled out of control and all of us are paying a heavy price for it in some shape or fashion. If cooler heads prevailed, Americans could take steps to reduce gun violence while still protecting the rights guaranteed by our Second Amendment, but that would require people across our political spectrum to recognize the validity and concerns of those with opposing viewpoints. A good reality check wouldn’t hurt either. Unfortunately, there is a glaring absence of cooler heads in today’s political climate, so gun violence continues largely unabated and the only questions are when and where it will strike next.
The Second Amendment states as follows: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”
Consider the following question: “Does the Second Amendment guarantee prisoners the right to bear arms in jail?” That sounds like a silly question, unless the person answering is an inmate who has experienced first-hand the danger posed by life in America’s jails. For those of us who haven’t, the answer to the question is an unqualified “No.” Denying firearms to prisoners is the right thing to do for obvious reasons, but one has to admit that the Second Amendment doesn’t contain language limiting the rights of prisoners. That means one of two things - either prisoners should be allowed to arm themselves or the rest of us must recognize that the rights afforded by the Second Amendment can be forfeited or subject to reasonable limitations under certain circumstances. Folks can quibble about what circumstances should trigger the forfeiture of gun ownership rights or what regulations of gun ownership are constitutionally reasonable, but any rational discussion must begin with the recognition that there are limits to what the Second Amendment guarantees.
In June of 2008, the United States Supreme Court issued a decision in District of Columbia v. Heller that was authored by the Court’s most conservative member, the late Justice Antonin Scalia, a staunch gun rights advocate. The Heller decision struck down several provisions of the District of Columbia’s firearm statute. In the aftermath of the Supreme Court’s ruling, gun control proponents bemoaned what they perceived as a loss of any chance for the government to curb gun violence. Gun rights proponents loudly proclaimed that Heller outlawed any government attempt to regulate firearms. Both sides were wrong.
As Justice Scalia explained in Heller: “…the Second Amendment conferred an individual right to keep and bear arms. Of course the right is not unlimited, just as the First Amendment’s right of free speech was not.”
So what are the Second Amendment’s limitations and what actions can a government of the people take to curb gun violence? Again, Justice Scalia’s words in Heller offer guidance: “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” A Supreme Court decision issued just last month expanded the list of approved prohibitions to include misdemeanor convictions for crimes of domestic violence.
Scalia’s Heller opinion went on to note that prohibitions against carrying concealed weapons were permissible under the Second Amendment, as were statutes prohibiting the possession of sawed-off shotguns and other “dangerous and unusual” weapons, including “M-16 rifles and the like.” Scalia also wrote: “Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.”
After explaining the Court’s legal reasoning, Justice Scalia directed the District of Columbia to permit Mr. Heller to register his handgun [D.C. law requires registration of all firearms] and issue Heller a permit to carry it in his home. That’s an astonishing order coming from the late Justice’s gun rights pen, especially given the often made claim by gun rights advocates that registration of firearms is blatantly unconstitutional. Apparently, they and the conservative Justice Scalia were not of the same mind.
Scalia drove home this point when he closed the Heller decision by stating: “The Constitution leaves the District of Columbia a variety of tools for combating that problem [gun violence], including some measures regulating handguns.”
Now that the Supreme Court has offered a clearer view of what’s possible and what’s not under the Second Amendment, take a moment to consider proposals that seek to limit the right of individuals on terrorist watch lists and “no fly” lists to acquire firearms. If laws that prohibit felons, perpetrators of domestic violence and the mentally ill pass constitutional muster because of a legitimate governmental and societal interest in keeping firearms out of the hands of individuals deemed dangerous, then keeping firearms out of the hands of would-be terrorists and people who pose a danger to air travel would be permissible, too. It is imperative that citizens be provided with a mechanism for challenging their inclusion on such lists, but the legitimacy of barring people deemed dangerous from possessing firearms is a well-settled principle of Second Amendment jurisprudence. Politicians and gun advocates who claim otherwise are just plain wrong.
It is often claimed that the Second Amendment preserves the right to own firearms for the purpose of hunting, but the United States Supreme Court has never held that the Second Amendment guarantees the right to hunt. The reason for that is an often overlooked fact – wild game belongs to the states. In the absence of federal endangered species protection, a state has the right to control the preservation of its animals as it sees fit. If a state wishes to bar the hunting of its animals, it can do so without infringing on anyone’s Second Amendment rights. If a state wishes to regulate hunting, including the regulation of what weapons can be used by hunters it can do without violating any rights guaranteed by the Second Amendment. It cannot be disputed that our Nation has a time-honored tradition of hunting, but a tradition does not rise to the level of a constitutionally protected right simply because of the passage of time. Those were Justice Scalia’s words, not mine.
There are many in this Nation who espouse the view that our Second Amendment’s right to bear arms includes the right to violently overthrow our own citizen-elected government. This viewpoint has never been condoned by the United States Supreme Court, with good reason. It is highly dangerous and runs afoul of our Founders desire to form a more perfect union by the establishment of a representative form of government. From a practical standpoint, if preserving the right to violently overthrow our duly-elected government were the Second Amendment’s purpose, who would determine when violent insurrection is legitimate? Would it be the right of each individual to decide for themselves when it is okay to gun-down a government official or voter with opposing political views? To support such an interpretation of the Second Amendment’s right invites anarchy, the very situation the founders of our Republic were striving to prevent.
The Second Amendment to the United States Constitution was never intended to be used as a weapon by one segment of the population to terrorize, murder and subjugate another. It was enacted as a measure of self-defense, but also subject to reasonable limitations and regulations. All too often we forget that an individual’s right to self-defense is no greater than our collective right to self-defense. An unarmed individual’s right to walk the street in safety is no less important than an armed individual’s right to do so. If reasonable limitations and regulations on firearms can help insure that balance, the Second Amendment does not stand in its way.
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