Gun rights aren’t absolute

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.

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