One of the most important issues currently facing America is the issue of the Second Amendment and gun control. Recent mass shootings have provided plenty of fodder for gun control advocates. Couple that with a leftist Democrat as the President and the political environment is ripe for drastic changes. But are they appropriate, or even allowed, pursuant to the Second Amendment?
To be clear, I am an avid supporter of the Second Amendment. I believe Americans have the right to bear arms for the individual defense, family/home defense and the common defense of the people. I do not think this means Americans have the right to own tank, bombers, nuclear weapons and the like. Despite my own personal feelings on this subject, I will try to provide the current state of the law to you in this guide.
First, it is important to know the importance of what is being discussed. Why should citizens be armed? Thomas Jefferson once state, “for a people who are free, and who mean to remain so, a well-organized and armed militia is their best security." Thomas Paine believed “it is the duty of the patriot to protect his country from its government." The great American and our first President, George Washington, stated, “firearms are second only to the Constitution in importance; they are the people’s’ liberty’s teeth." Jefferson also stated, “the strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." Finally, a modern day President, considered by many to be one of our greatest leaders, Ronald Reagan, stated, “we must reject the idea that every time a law’s broken, society is guilty rather than the law-breaker. It is time to restore the American precept that each individual is accountable for his actions."
Now let all of those statements sink in. Think about what they truly mean. These are the thoughts and ideas of our greatest leaders. They form a collective backdrop to the discussion at hand.
The Bill of Rights was adopted as part of our Constitution in 1791, 222 years ago. It included such rights as freedom of religion, speech, press, assembly and petition, the right to bear arms, quartering for troops, protections from certain governmental searches and seizures and several other important rights guaranteed to us, the citizens. The Second Amendment contains the right to bear arms, and it 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."
Gun control advocates have long argued that the only reason to have arms would be as part of a state militia, which is no longer necessary. Protectors of the “gun rights" countered with the argument that the right extended to the individual. Amazingly, the US Supreme Court was not called upon to decide this issue until 2008, 217 years after the Bill of Rights was adopted. (The Court could have taken a broader approach in 1939 in its consideration of U.S. v. Miller, 307 US 174, but for whatever reason declined to have that broader consideration) In 2008, the Supreme Court issued its opinion in DC v. Heller. This case resulted from a law that existed in the District of Columbia that generally prohibited the possession of handguns without a license (even in the home). The law further required citizens who lawfully owned firearms to keep them “unloaded and dissembled or bound by a trigger lock or similar device." Heller was a DC Special Police Officer authorized to carry a handgun while on duty at the Federal Judicial Center. Heller applied for a license for a handgun he wished to keep in his home. DC refused to issue the license and Heller filed suit.
I will no rehash the entire opinion of the Court in this blog. It is, however, interesting and worthwhile, if not lengthy, reading. You can Google the case name if you would like to read it on your own. I will however, point out some of the more pertinent observations of the Court.
The Court went through a lengthy history of the Second Amendment and the right to bear arms. The Court found that in order to guarantee a well-regulated militia, the prefatory clause, the right of the people to keep and bear arms, the operative clause, was necessary. In other words, if you de-armed the citizens, then how could you have a well armed militia? The answer is obvious, you could not. Therefore, in order to provide for the common defense, should the need arise, the right of the people to keep and bear arms is a central right.
O.K, but which arms? The Court answered this by stating that, "it may well be true today that a militia, to be as effective as militias in the 18th Century, would require sophisticated arms that are highly unusual in society at large." The Court made it clear that the present day weapons common to its citizens for defense of the home and necessary to a well armed militia are protected by the Second Amendment. The Court also ruled that the protections of the Second Amendment extend to citizens individually on the basis of self-defense.
The current fight seems to center on the AR-15 and so-called high-capacity magazines. Are these protected by the Second Amendment? This question was not presented to the Court in Heller, or in the 2010 decision of McDonald v. Chicago. However, many modern day gun experts regard the AR-15 as an excellent weapon for some self-defense. Additionally, it would be difficult to imagine a modern day militia without these weapons, along with larger capacity magazines. (Certainly larger than the 7 round limit recently passed in New York!) Therefore, I am convinced that on this issue, the Court, if called upon to decide, would protect the right to own an AR-15 and to keep large round magazines. Of course, this assumes that the individual does not have a criminal background or disqualifying mental illness.
This does not mean, however, that nothing should be done about mass shootings. There is no dispute that the shooters involved at Newtown, Conn., Aurora, CO, Virginia Tech and even the University of Texas in Austin, among others, were suffering from a mental illness or disease. Perhaps our time and energy would be better served determining how we can help similar individuals avoid becoming a threat to society.
As President Reagan stated, it is time to reject the idea that the [Second Amendment] is broken and that society is guilty, and to restore that American precept that each individual is accountable for his actions.
Family Law Attorney