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Gun rights aren’t absolute



Published: Sun, December 30, 2012 @ 12:00 a.m.

By Richard P. McLAUGHLIN

Special to The Vindicator

The most recent shooting tragedy in Connecticut has generated another national examination of conscience. As peace loving people, what can we do to stop this mindless killing and how exactly should we do it? Hopefully, those questions will be considered and answered by the task force established last week by President Obama. Presumably, this new task force will study and report back on such issues as gun regulation, mental illness, cultural issues, video games and other social and legal factors that may impact the situation.

Much of the current conversation on the subject of gun regulation has been heated. Gun rights activists and their supporters usually justify their opposition to any gun regulation by relying on the Second Amendment to our Constitution. They claim their constitutional rights to guns of any kind, anytime, anywhere and under any conditions, are absolute and unconditional.

Narrow decision

However, nothing could be further from the truth. The protections set forth in our Bill of Rights, whether referring to the freedom of religion, freedom of press, or Second Amendment rights, they are all subject to reasonable limitations and qualifications. Those basic and fundamental rights always have been regulated by federal and state legislation, subject to ultimate Supreme Court approval. There is no absolute freedom under our Bill of Rights.

The major Supreme Court case on the issue of Second Amendment rights, was District of Columbia v. Heller (2008) in which the Court struck down a D.C. law that banned the possession of all handguns in the home. It was a fairly narrow decision. Then, two years later, the Supreme Court ruled in McDonald v. Chicago that the rule also applied to the states. When gun-rights advocates talk about their “Second Amendment rights,” they are unknowingly referring to the rulings in these two cases. For example, the other day, I heard a local talk show host say three times – within 15 or 20 minutes – that “I love my Second Amendment rights.”

In Heller, the “premier” case, the Supreme Court referred to such limitations that still apply to the possession and use of firearms. Speaking for a majority of the Court, Justice Antonin Scalia stated that: “Like most rights, the right secured by the Second Amendment is not unlimited.”

Historical perspective

In discussing the historical development of gun ownership and the right to bear arms in early and Colonial America, he further observed that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” And then, to more fully elaborate on these limits of the Second Amendment rights, he explained at length that “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.”

Aren’t these some of the very issues we are discussing today about the regulation of guns?

And last, the Court recognized yet another limitation: “We also recognize another important limitation on the right to keep and carry arms . . . the sorts of weapons protected were those “in common use at the time. . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” Clearly, this language by the Supreme Court would cover military-style assault weapons and high capacity magazines. Given this clear language, I believe that any such reasonable legislative restrictions would be permitted and upheld by the Supreme Court.

The Court concluded with this footnote: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” This footnote language is especially encouraging because it clearly leaves the door open to other forms of reasonable gun regulation that the court had not previously mentioned.

room for discretion

These limitations provide an umbrella broad enough to constitutionally cover and address not only the kinds of weapons to be regulated, but the places and locations where they can be taken, and the conditions and qualifications under which weapons may be sold and to whom they may be sold. That would surely include limitations on gun show transactions, as well as mandatory background checks.

No doubt, significant and real gun control is a long way away. However, we should take some comfort in knowing that, if we ever do get a legislature with the guts to enact real reform, that such reasonable limitations will probably be upheld by the U.S. Supreme Court.

Richard P. McLaughlin is a retired attorney who lives in Liberty Township. He was a Democratic Congressional candidate years ago and also served as an official with the Trumbull County Democratic Party.


Comments

1dmacker(242 comments)posted 1 year, 6 months ago

“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”,
says the author.

Sounds like we already have all the gun laws we need so what's the problem? The criminals aren't abiding by the laws we already have so how will passing more laws affect anyone but the law abiding citizens?
It makes sense only to those anti-gun folks who will grasp at any tragedy to further their agenda. We owe the victims more than allowing them to be a prop for gun control.

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2PapaJerry(3 comments)posted 1 year, 6 months ago

The opinion of the conservative NRA members of the Supreme Court ruled that law abiding citizens have a right to own guns. However, the Court was very specific in stating the Government can regulate the types of weapons we can own and how and to whom guns can be sold to. We have laws on the book but the NRA through their legislative lobbing have made most of the law unenforceable or have so many loopholes that they are ineffective. We need new common sense laws. As the NRA always states, “Guns don’t Kill, People Do.” So it is time to have strong requirements for individuals owning or possessing firearms. Guns in themselves are inherently dangerous and individuals possessing them should be held accountable for their accessibility and use. I do not think it would be unreasonable to have all gun sales, even between individuals, be process by licensed gun dealers so background checks could be conducted on the purchaser. Also, with the increase in concealed weapons, the person authorized to carry a concealed weapon should be required to qualify with the gun using the same qualify requirements of the State police. Again, licensed gun dealers could conduct the qualifications and record the results. Also, police and district attorneys should be forbidden to drop gun charges on individuals arrested with a firearm or that used a firearm in a crime. Also, the NRA membership should ask why the NRA sponsors laws that allow more convicted criminals, suspected terrorist, and individuals with mental problems to possess firearms, and at the same time, severely restricting information on individuals using guns in criminal activity from being shared by law enforcement.

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3Photoman(989 comments)posted 1 year, 6 months ago

These kooks who kill have played right into the hands of our government. When the controls come down they will, most likely, be but stepping stones toward total disarmament or the populace (excluding criminals and government agencies) and the vast majority of the people will be held hostage by one of those two groups.

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4VINDYAK(1799 comments)posted 1 year, 6 months ago

We the people have failed to recognize our lack of responsibility in dealing with mental health and mentally challenged individuals. We allow our doctors to fill them up with drugs and put them back out into public life and expect them to act normal. Then, when they go off the deep end and commit a crime with a gun, people want to blame the NRA, hunters, shooters and collectors. It is never the parents fault, or the doctor's, or family and friends...its always the gun and NRA.

This issue is not going away until people begin to recognize the fact they cannot continue to coddle mentally challenged individuals, giving them everything they want, including computer games and violent TV shows, then cry and scream at the NRA for what their children have done.

Who is really to blame here? Think about it. Parents allow teenagers to run loose. They give them cars, cell phones, violent computer games, don't lock up their guns, then blame the NRA as if its all the NRA's fault.

Our society is a development of how we raise our children. If you do not like where society is going, then look in the mirror at the person who allowed it to become what it is. Is your child growing mentally, or regressing? Do you even know? Why are you depending upon your child's school teacher to evaluate your child? What have you done today to make your child a better person?

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