Dissecting Second Amendment rights
My opinion piece, “Jaded logic behind gun control debate,” published last Friday, created a flurry of comments and discussion online.
Writers undoubtedly enjoy supportive feedback and accolades. Criticism and rebuttals, however, serve as honest checks to the validity of one’s assertions (even if suggested your point is “stupid”).
Josh Heath provided a claim that deserved an honest evaluation, “…there is no contradiction between supporting the [second] amendment and supporting gun control. No right is absolute Jason.”
Heath’s comment is not only valid, but backed up by years of judicial rulings. In fact, the Heller decision reinforces that notion multiple times. For instance, “the Second Amendment conferred an individual right to keep and bear arms.” Of course the right was not unlimited, just as the First Amendment’s right of free speech was not.”
Where the discussion gets heated is what does the Second Amendment really protect then? Heller answers this question by saying the core right is not simply keeping a handgun in the home (although that was part of the question before the court), but was self-defense.
Courts consistently bastardize the reading of Heller to mean selfdefense in the home is protected, but not elsewhere (i.e. most public places). When Ken Dean spoke of banning possession and purchasing of guns until the age of 21, the core right of self-defense becomes denigrated and legislated into oblivion, and by any standard of scrutiny, would fail constitutional muster.
Perhaps the argument here is constitutional rights do not start until the age of 21, but I doubt anyone would stand behind the belief that free speech, due process and protection from unlawful searches do not become relevant or valid until age 21.
Heller does provide examples of presumptively lawful situations where the right is limited.
Multiple cases illustrate this point, including Nunn v. State and State v. Chandler, where state supreme courts ruled that banning concealed carry is lawful, but the prohibition of openly carried firearms was not. Even recently, the ninth circuit ruled California’s concealed carry laws (which are highly restrictive and leave issuance decisions up to the local law enforcement authority) are constitutional, because the Second Amendment does not protect concealed carry.
Under current law in California, law-abiding citizens have no right to openly carry or conceal carry. Many on the left would consider this “common sense” restriction, but both myself, and the Heller decision, consider it a full destruction of an enumerated right. Perhaps even more disheartening is gun control advocates continually relegate the right to be meaningless in the modern world, and use unlawful abuses of firearms to justify admonishing and destroying the understood and codified core of the Second Amendment—the right to self-defense.
Along with disregarding the core right as hokum in today’s society, gun grabbers applaud Heller regarding the type of arms that can be limited. Utilizing the ruling in the Miller case, Heller discusses “traditional prohibitions against carrying dangerous and unusual weapons.” Some argue that Heller dismisses the idea that if “weapons that are most useful in military service- M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.”
What is overlooked in Heller, however, is that the banning of weapons must be both “dangerous and unusual.” AR-15-fearing liberals argue that since it is a variant of the M-16, it can be banned. The problem with this is the AR platform is not uncommon by any stretch of the imagination in the public realm. As stated in Caetano v. Massachusetts, “The relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.”
Considered to be the most popular rifle of our day due to the low-cost, extreme versatility, and perhaps more to the point, because the federal ban on such rifles caused them to become far more prominent in the consciousness of the public, an estimated ownership of such variants in the millions, makes them anything but unusual.
In Caetano, Justice Alito beautifully captured the true and real danger of the Left’s continual dismissal of the Second Amendment.
“If the fundamental right of selfdefense does not protect Caetano, then the safety of all Americans is left to the mercy of the state authorities who may be more concerned about disarming the people than about keeping them safe.” Perhaps the shooting in Florida should be a wakeup call, not about restrictions of firearms to the populace, but how— when left to others—our right to self-defense becomes no right at all?