AP File Photo
A gun enthusiast examines a Bushmaster assault-style rifle at the Shooting / Hunting Outdoor Tradeshow last month in Las Vegas.
Much of the opposition to President Obama’s proposals on gun control has been based on the presumption that the regulations violate the right to bear arms guaranteed by the Second Amendment to the U.S. Constitution.
Those who make this claim seem to have little knowledge about the exact nature of this supposed right. A bit of history may be useful.
The Second Amendment has a very scanty record of judicial commentary. The significant ruling to which opponents of gun control appeal is Heller v. District of Columbia decided in 2008. As Justice Scalia noted in his majority opinion, the previous significant Second Amendment case was United States v. Miller decided nearly 70 years earlier in 1939. Despite a thin record, most court observers think that Heller extended, expanded or altered previous assumptions about “the right to bear arms.” In his dissent, Justice Stevens called Heller “a dramatic upheaval of the law.”
Heller focused on a specific issue, self-defense. The District of Columbia had an ordinance restricting ownership of handguns and requiring that all firearms be “unloaded, and disassembled and bound by a trigger lock.” Heller, a retired policeman, argued that this violated his right of self-defense. A functioning handgun was the weapon in question.
The court ruled that the D.C. ordinance violated the guarantees of the Second Amendment. The five “conservative” justices, Scalia, Roberts, Thomas, Alito and Kennedy voted to overturn the ordinance; the four “liberal” justices, Stevens, Souter, Ginsberg and Breyer, dissented.
Having affirmed a right to self-defense, Justice Scalia argued on various historical grounds that handguns were a common and plausible form of self-defense. The requirement to keep the weapon unloaded and disassembled largely disabled it for ready self-defense. In the debate about gun control it is necessary to recognize that Heller was, in its way, a somewhat narrow ruling, even in Scalia’s own opinion.
Quoting Scalia: “Like most rights, the right secured by the Second Amendment is not unlimited. ... 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.”
In addition to limiting persons and places, not all arms are protected. Scalia again: “We also recognize another important limitation on the right to bear arms. Miller (the previous Second Amendment case) ... explained that the sorts of weapons protected were those ‘in common use at the time.’ ... We think that limitation is fairly supported by the historical tradition prohibiting the carrying of ‘dangerous and unusual weapons.’” (Scalia cited a number of precedents.)
1) Rights guaranteed by the Constitution are never “unlimited.” If there are reasons to limit certain persons from possessing firearms, it would follow that universal background checks are necessary to effect this limitation. Likewise, it seems that weapons can be prohibited in designated areas and that some weapons can be outright prohibited from individual use.
2) What constitutes a “dangerous and unusual weapon?” Can assault weapons and multiple clips be regarded as “dangerous and unusual”? Sawed-off shotguns were prohibited under Miller. Scalia notes in his opinion that at the time that the Second Amendment was written, what was intended were “small arms.” Insofar as Heller was directed at self-defense, it would seem that small arms would be sufficient and that military assault weapons would not be automatically included in the ruling.
3) How firm is Heller as the last word on the Second Amendment? Not very. Unlike rulings on freedom of speech or religion where there is a long record of jurisprudence to back up current decisions, the Second Amendment has, as noted, received little judicial review. Heller was decided, after all, only 5-4. At the time that Heller was wending its way to the court, the NRA was reluctant to join in the petition because it was concerned that the verdict would go against individual gun ownership. It was fortunate for their cause that the make-up of the court was “conservative.” Change a few justices and Heller could well be reversed or restricted. As Lincoln said about the Dred Scott (fugitive slave) decision, the court does not issue Holy Writ.
4) Justice Scalia describes himself as an “originalist” in interpreting the Constitution, and the “conservative” majority in Heller is presumed to reject an “activist” interpretation of the law. This makes Heller an ironic decision. Crucial to the majority opinion was the notion that the Constitution implied “an individual right to self-defense.” Critics of the ruling regard this “constitutional” right with suspicion, analogous to the court’s discovery of the “right to privacy” used to justify various sexual behaviors and abortion. By way of contrast, the Vermont Declaration of Rights specifies the use of firearms for hunting and self-defense.
I am not a lawyer or a constitutional scholar, but it does seem that the so-called individual right to bear arms is not the absolute the NRA claims. I am encouraged by a recent joint statement by 50 distinguished constitutional law professors supporting the constitutionality of the president’s proposals.
Dennis O’Brien is a resident of Middlebury.
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