Republican politicians and their NRA sponsors should spend less time worshiping the Second Amendment and more time understanding it. The main reason Americans can’t get anywhere with the “gun debate” is that gun advocates (a much smaller group than gun owners) have a grossly exaggerated view. of their constitutional rights. Conversely, they have a grossly understated conception of the rights of every American — not just themselves — to “life, liberty, and the pursuit of happiness.” Among those who profit from the latter are innocent school children.
“Like most rights, the right guaranteed by the Second Amendment is not unlimited.” If you asked a hundred gun advocates who said those words, most would answer “Joe Biden!” They would be wrong: These are the words of United States Supreme Court Justice Antonin Scalia, a conservative and constitutionally loyal Reagan appointee, in his view in the landmark 2008 District of Columbia case and para. c.Heller. (See page 54 of the Court’s opinion, widely available online.) Heller upheld the limited right of every American to own guns, even those who are not members of a militia.
In Section III of the opinion, which begins with the words quoted above, Justice Scalia explained that the Second Amendment does not confer “the right to keep and bear any weapon in any manner whatsoever and for whatever purpose”. He then warned, also at page 54: “. . .[N]nothing, in our view, should be taken to cast doubt on long-standing prohibitions on the possession of firearms by criminals and the mentally illor laws prohibiting the carrying of firearms in sensitive places such as schools and government buildings, or laws impose conditions and restrictions on the commercial sale of arms.” (Emphasis added.) Significantly, Justice Scalia noted that such a list of possible regulations was not meant to be exhaustive; that is, there may be other reasonable limitations.
Justice Scalia continued, at page 55 of the opinion: “We also recognize another important limitation on the right to keep and bear arms. [The] Miller [case] said, as we have explained, that the types of weapons protected were those “in common use at the time”. [quoting Miller]307 U.S., at 179. We believe the limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons”. (Italics added.)
Concluding his discussion of limitations on gun rights, Justice Scalia explicitly dismissed the anticipated argument, from gun advocates, that banning military-grade weapons like M-16s would be unconstitutional because modern militias would need them to fight government armed forces. (Page 56.) Rejecting this argument, Justice Scalia noted that the overwhelming power of the government military, relative to civilian arms, cannot alter the original intent of the Second Amendment.
Since the NRA has long ceased to be an organization whose primary mission is gun safety and is primarily devoted to promoting the sale of more guns, it ignores the points made in this column and instead sells self-righteous, defensive, and downright false mythology about guns and the Second Amendment. People are dying needlessly because of this repugnant, quasi-religious deception.
No amount of NRA hype or AR-15 decal jingoism or Lonesome Dove fantasies can change three critical points Justice Scalia made to Heller: 1) gun rights are not unlimited; 2) prohibitions on possession of firearms by the mentally ill are constitutional; and 3) prohibitions on possessing dangerous and unusual weapons are also constitutional.
These points are the law of the land. They are not a “slippery slope”, as the NRA constantly argues, but rather a reasonable fence within which we must all live, if we are to live in peace.
Therefore, can we please cut the second amendment lie and start an intelligent discussion about what kind of sensible laws can be put in place, according to Heller, to reduce gun deaths – especially mass shootings of innocent people?
Nile Kinney is a California attorney. The opinions expressed in this column are his own and do not reflect those of his colleagues or anyone else.