Unrestricted Constitutional Rights Are a Myth

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.



The Constitution’s 2nd Amendment

I often become amused and/or frustrated when I read people’s comments about “Constitutional rights” when they likely have never read the Constitution and almost certainly don’t know it’s history. People say stuff like “my right to (fill in the blank) is protected by the Constitution” when, in fact, that right is often never mentioned or implied. A few years ago Newsweek polled 1,000 Americans and found that only 30% knew that the Constitution was the supreme law of the land. In a previous post I mentioned the dismally low number of Americans who could name a single First Amendment right, who knew that the Constitution provides three branches of government, or who could name one branch of government.

But Americans still feel comfortable relying on their “Constitutional rights” when doing so supports their cause. Suddenly everyone becomes a Constitutional scholar!

“Constitutional law” is an area of study that covers what is actually written in the United States Constitution and how that document’s passages have been interpreted, primarily by the Supreme Court, since the 1790’s. Anyone familiar with this body of law knows that 1) much of the Constitution is vague and inapplicable to contemporary society because it was written in a different era (it requires states to pay debts using gold or silver coin, for example), and 2) the Court has interpreted the document’s passages thousands of times in the last 220 years BECAUSE those passages are vague and inapplicable to contemporary circumstances.

Here are a few examples of Constitutional passages and how they have changed:

1st Amendment

The first amendment in the Bill of Rights protects freedom of speech, press, religion, assembly, and the right to petition the government for redress of grievances. Are these rights absolute? Do I have unrestricted freedom of speech and religion, for example? Obviously not.

  • I have freedom of speech but that doesn’t mean I have the right to slander another person’s reputation.  And as stated by Justice Oliver Wendall Holmes, freedom of speech does not give me the right to yell “fire” in a crowded theater.
  • I have freedom of religion but I cannot use that freedom to justify smoking marijuana or ingesting peyote in my religious ceremony or to justify human sacrifice.
  • I have freedom to assemble but that doesn’t give me the right to block busy streets or sidewalks or to damage property with my assembly.

4th Amendment

This Constitutional provision protects us from “unreasonable search and seizure”, meaning the government must have a warrant to search our property. This was written at a time when almost all property was fixed in a certain location, so our houses were easy to identify for search. But:

  • The authors of that provision could not have imagined automobiles, trains, airplanes, or other such “movable property” that can be hundreds or thousands of miles away before a warrant can be secured and served.
  • The authors could not have imagined searching through someone’s urine for illegal drugs as a form of search.
  • They could not have imagined using drug sniffing dogs to find illegal substances being transported in cars or luggage.
  • And using airplanes or helicopters to search for marijuana fields was beyond the authors’ comprehension.

8th Amendment

This passage protects Americans from “cruel and unusual punishment” at the hands of the government. The authors could not have imagined waterboarding, over crowded prisons, refusing meals to inmates, or contemporary forms of torture. The authors probably had things like the rack and thumb screw in mind (of course those were pretty nasty as well). The Court has expanded the 8th Amendment to prohibit any severe punishment that is inflicted arbitrarily, so it has been used to prohibit some forms of execution, overcrowded prison cells, denying prison inmates adequate food, etc.

I could continue because almost every major Constitutional passage has been interpreted over time to make those passages conform to contemporary circumstances.

Which brings us to 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”

Before I begin I should let you know that I am a gun owner and that I enjoy shooting; mostly shooting “at” skeets and targets because I tend to miss more often than not.

There is little doubt that when the 2nd Amendment was passed the authors intended for every citizen to have the right to possess firearms because all citizens could have technically been a part of the militia. Since there was no real standing Army that was the way we defended ourselves against invasion.

There is also little doubt that many of that period’s leaders wanted an armed citizenry as protection against an overzealous or oppressive government. Richard Henry Lee said “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.”  Being taught how to use firearms was also something the Founders expected.

But…here is another Constitutional passage that is often overlooked by those arguing against gun control.

“The Congress shall have Power … To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” 

Why is this important? Because the Founders stated that standing armies could only be authorized for two years but a Navy could be “maintained”. They knew that a Navy was our first line of defense against invaders but a standing Army could be used to oppress the people. So their intent was for a militia to serve the purpose served by an Army (except in extraordinary circumstances when an Army would be formed). And the militia’s responsibility was executing laws, putting down insurrections, and repelling invasions that got past the Navy. They wanted to be certain no Army could oppress or suppress the public. They also wanted to be sure that all able males owned a gun for the purpose of putting down insurrections (there had been a few by that time) and repelling invaders.

The 2nd Amendment was not intended to give citizens the right to own weapons for personal self defense.

Also, as the well known argument goes, the weapons the Founders had in mind were mostly flint locks, blunderbusses, and single shot carbines. They were not the rapid fire, high caliber weapons capable of killing 58 people and wounding more than 500 in eleven minutes. I’m fairly confident the Founders NEVER considered this possibility.

So here is the question:

If we know freedom of speech, search and seizure, cruel and unusual punishment, freedom of the press, freedom of assembly, freedom of religion, and every other Constitutional provision of the Constitution (many such as the Commerce Clause, the Guarantee Cause, the Presentment Clause, and countless others too complicated to discuss in a 1200-word blog post) have evolved over time to meet contemporary circumstances, why is there resistance among some Americans to doing the same with the 2nd Amendment? There is absolutely no doubt the Founders’ view of “arms” was quite different from those available today.