The Second Amendment

The following entry is a post that was shared previously on Facebook.  It is presented here as a way to raise again for discussion and archive the content.  I have added formatting and a bit of color commentary that resulted from the previous online discussions.

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Warning – Treatise and Rant. Not necessarily what I would like to discuss, but since everyone has decided they are Constitutional experts, it felt time to add a little to the conversation. Not that I view myself as an expert, but in my line of work, I’ve had to study it a bit, and feel as qualified as anyone else to discuss.

Of course, this relates to the Second Amendment.

Let’s first start by clarifying what the Second Amendment actually says. It does not just state “the right of the people to keep and bear arms shall not be infringed.” The full Second Amendment reads “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” This is important because the “well regulated Militia” and “necessary to the security of a free State” are so often ignored, when they are so closely tied to the right in the text itself. This will be important later on.

{Please note, the bulk of this discussion is on Federal rights outlined by the Second Amendment.  It's what most people refer to when discussing gun control.  There are many individual states that do have personal rights to bear arms that have been in their Constitutions since inception.  There are a few states that are silent on such issues.  For the purposes of this entry, I focus solely on the Federal Constitution.}

Now, a few points…

• Only the government can infringe your Second Amendment right – 

Again for repetition, only an action by the government or branch thereof can be considered an infringement of your Second Amendment right. Wal-Mart or Dick’s refusing to sell assault rifles does not infringe your Second Amendment right. Target or Chili’s preventing you from bringing in a firearm does not infringe your Second Amendment right. If I ask you to take your concealed carry weapon out of my home, your Second Amendment right is not infringed. Conceivably, you could be prohibited from carrying a gun anywhere but your home and government controlled spaces and still not have your Second Amendment right infringed (as all limitations would be placed by private entities only).

• Your Second Amendment right has only been your personal Second Amendment right for 10 years – 

Prior to 2008, the Second Amendment was not recognized as a personal right to bear arms protected by the Constitution. The Constitutional Second Amendment, prior to 2008, tied the right to keep and bear arms into the well-regulated militia, making the right a collective right of the people to organize into militias and protect themselves in that fashion. Further, there was not a right to organize private militias (i.e. groups of people creating a militia for their own purposes), the militias were intended to be individual state militias (i.e. the Texas militia, the Louisiana militia, etc.) which could provide for a state’s defense and protect an individual state from a tyrannical federal government. The Second Amendment was not recognized as a codification of a common-law right to self-defense. We did not start treating it as such until the 2008 District of Columbia v Heller Supreme Court case, in which the court determined that the Second Amendment did recognize a personal right. This means that up to 2008, when looking at whether the Second Amendment had been infringed, courts did not look at whether any one person’s right to protect themselves had been impaired. They looked at the restriction on the weapon under the context of a state militia. Conceivably, the Court in the future could overrule Heller and determine that the right to bear arms is inextricably tied to the well-regulated militia. For now, we will work under the current assumption of the personal right.

{It can be argued whether the Court in Heller reached the correct decision, whether the Amendment should have always been interpreted accordingly, whether the decision was politically motivated, and on and on and on.  This point is merely to highlight the previous understanding of the Amendment in our legal system for the first 232 years of our existence and how new the Federal personal right in the Amendment truly is.}

• Like most other rights, the Second Amendment right is not unlimited – 

To have a functioning society, we have agreed that there are certain limitations that can be placed on nearly all of the rights we have enumerated in the Bill of Rights. Your right to free speech cannot be used to yell “fire” in a public theater. Your right to free press cannot be used to commit libel. Your right to the free exercise of religion does not include human sacrifice. Likewise, the government can put certain limitations on the right to keep and bear arms; it has always been in the government’s power to do so. Most often these restrictions occur when one person’s right to keep and bear arms runs up against another person’s rights. We see examples of this with gun-free school zones, prohibitions on fully automatic weapons, background check requirements. Semi-automatic weapons seem to be the cause of a lot of current discussion and it’s important to note that they were themselves part of heavy restriction from 1994 to 2004, so there is definitely precedence for government action in this area. It would not be that great of a stretch for the government to reinstate a more effective version of this ban (with fewer loopholes) in the future.

• If some form of restriction is put in place, it does not mean we are headed toward Nazi Germany (or your other totalitarian nightmare) or that we are destroying the Constitution – 

There are many countries with functioning democracies that have stricter gun laws than we do. It’s not an either/or situation, either we have full unfettered access to weapons or we are heading toward a totalitarian nightmare. There are a number of other scenarios, if for no other reason than not all gun control measures are equal. There are different measures of scope, efficacy, level of restriction, etc. And we should be able to talk about them and explore different possibilities without immediately shutting down the discussion. You can guarantee whatever restriction is put in place will be challenged and raised to the court to determine its Constitutionality.

{This point is not meant to argue that there is no slippery slope, it is merely to show that the slope is not as steep as some people would argue.  For a slippery slope argument to work, the feared end needs to be something that would occur in quick succession after the first step - a steep slope.   One counter argument to any gun control is that we go right from any gun control to Nazi Germany, or the slaughter of the Native Americans, or Communist Russia, etc. etc. etc.  This point is merely to illustrate there are a long list of steps between the two.}

And finally –

• No one is coming to take away all your guns –

Seriously, no one wants to take away all your guns, like your shotgun or your pistol. Ok, maybe someone on the complete fringe does, but most everyone else just wants to be able to explore different options. Most of the steps than an overwhelming majority of Americans are in favor of have nothing to do with taking away current guns at all. They focus on closing loopholes that allow people to purchase guns without a background check, tightening restrictions on the ability of people with mental illnesses to purchase guns, or tightening restrictions for people on terrorist watch or no-fly lists. They include digitizing the gun purchase records so they can be easily searched and preserved. They include being able to study the impact of gun violence. We can even seek to make gun design safer (why is it possible to easily modify a semi-automatic weapon to a functioning automatic weapon – is that a design defect or intentional feature?) And yes, it may eventually include restrictions on buying certain types of guns (like assault rifles). That particular ban has far more support than you probably realize. But there are a lot of common sense things that can be done if we could only get past ourselves and discuss them.

If we could, we might discover that this goes way beyond the mass shootings that really bring the issue to our attention. We need to explore the impact it could have on mass homicide, on domestic homicide, and on suicide. And remember, we do not have to do only one thing. We can multi-task and should be addressing mental health in this country, crime, poverty, bullying in schools, depression, AND guns. But we should be doing something. It’s way past time to do so.

Shared on Facebook, March 26, 2018, 5:24 pm.