Almost everyone knows that our most fundamental rights are protected by the Bill of Rights, the Constitution’s first ten Amendments. The thing is, even though those amendments protect rights the Founders believed were granted by God or nature, the rights are not absolute. A few examples should suffice.
- The First Amendment states: “Congress shall make no law respecting an establishment of a religion, or prohibiting the free exercise thereof...”. Does that mean we have absolute freedom of religion? Not at all. Polygamy, smoking marijuana, human sacrifice, refusing children medical treatment, adults “marrying” children, and countless other religious practices would be in violation of that phrase, so freedom of religion is not absolute.
- The First Amendment also says: “Congress shall make no law…abridging the freedom of speech, or of the press“, but libel and slander, child pornography, fighting words, false advertising, and other forms of expression have been ruled violations of free speech and press, so these are not absolute.
- The First Amendment also says: “Congress shall make no law…abridging…the people’s right to assemble“, but you and I cannot gather in the middle of a street or highway any time we want and disrupt traffic. Nor can we assemble on private property or with the intent to destroy property.
- The Fourth Amendment protects us from “unreasonable searches and seizures” and states that our property may only be searched based on a warrant sworn on the basis of probable cause, but that right is not universally applied. A number of exceptions allow police officers to search our person or our property without securing a warrant.
- The Sixth Amendment states that a citizen charged with a criminal offense may “have the Assistance of Counsel for his defense“. Prior to 1963 we had that right if we could afford an attorney. The Supreme Court decided, after 172 years, that this was a right the government had to guarantee by providing attorneys (today these are overworked attorneys, but that’s for another post). So this right was not unrestricted and today it still does not extend to most crimes (misdemeanors).
You get the idea. The Supreme Court has made it clear time and time again that NO right is absolute, nor can it be.
And that includes the 2nd Amendment: “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”.
Why is it that a subset of the American population believes the 2nd Amendment allows no restrictions on the right to “bear arms” when every other right is restricted? Numerous restrictions on firearms have been imposed over time. Examples:
- Licenses are required in every state for hunters using guns or other weapons.
- We obviously cannot legally use a gun to commit a crime and the punishment is more severe if we do so.
- States impose “concealed carry” restrictions that require owners to keep guns visible to the public and police.
- States limit the types of guns we may possess, how we may purchase them, and impose other limits.
- In 1934 Congress passed The National Firearms Act restricting access to machine guns, guns with barrels under a certain length, gun silencers, and more. The law also required owners to register certain weapons with the U.S. Department of Treasury.
Restricting firearms rights is not a new or novel idea.
SIDE NOTE: There have always been two broad interpretations of the 2nd Amendment. One focuses on the “well regulated militia” phrase thus giving government the power to regulate firearms unrelated to the “militia”. The other focuses on the individual right to self defense that goes back at least to American Colonial times resulting in individual gun rights. The proper understanding of the Founders’ meaning is somewhat irrelevant since, as I said, restrictions on firearms are not a new notion.
So what happened to make some folks believe the 2nd Amendment was absolute and beyond restriction? Gun manufacturers and interest groups, particularly the National Rifle Association (NRA), carried out what conservative Supreme Court Chief Justice Warren Burger called “one of the greatest pieces of fraud, I repeat the word fraud, on the American public”. These groups successfully convinced a portion of the public, a very vocal and passionate portion, that the 2nd Amendment gave individuals the unrestricted right to own guns.
Within a few decades of Burger declaring this interpretation a “fraud” presidents had succeeded in appointing a majority of justices to the Supreme Court who disagreed with him and who at least partially endorsed the “individual right” interpretation of the 2nd Amendment. In a 2008 5-4 decision the Supreme Court ruled that the Constitution does protect individual rights to gun ownership.
However, what often gets lost is that the decision’s author, Antonin Scalia (one of the Court’s most conservative justices ever), also said that like all other rights the right secured by the Second Amendment is not unlimited. The Court said that “reasonable” restrictions on firearms were constitutional. In fact the Court stated that some restrictions are “presumptively lawful”. These include:
- Conceal carry laws.
- Keeping firearms out of the hands of felons or the mentally ill.
- Determining that firearms are not allowed in schools, hospitals, or other public places.
- Restricting the sale of firearms (age limits, etc.).
- Restricting “dangerous and unusual weapons”.
The bottom line? The 2nd Amendment does guarantee the right to personal ownership of guns, but that right is no more unlimited than are religion, speech, press, or any other right. It is thus possible for government to:
- Impose strict background checks on those purchasing firearms, and at least a couple of laws have done so making it more difficult for convicted felons and the mentally ill (and terrorists) to obtain firearms.
- Restrict the number of bullets that can be held in a gun’s clip. When I was a kid hunting in the woods of Mississippi with my Dad we had to have a plug in the shogun when we hunted birds, and that plug would only allow me to put three shells at a time in the gun. That was fifty years ago.
- Limit the online and gun show sale of firearms that make circumventing laws easier.
- Ban the sales of any piece of equipment making the rapid fire of weapons possible (bump stocks).
- Require gun safety classes for those legally purchasing firearms just as we do with driver’s licenses.
- Even ban or limit possession of certain classes of firearms deemed “dangerous and unusual”.
Can we stop all acts of senseless violence by imposing such restrictions? No. But we might stop at least some such incidents and trying something beats trying nothing.
As I’ve said previously, I own guns and I enjoy shooting. However, I’m perfectly fine with legal restrictions on firearms possession that might save the lives of innocent children (and adults). I care much more about those lives than I do my unrestricted right to own guns, and I have trouble understanding how it could be otherwise.
And the Constitution allows such reasonable restrictions regardless of some Americans’ belief to the contrary.