A more rational debate on gun rights
Second Amendment repeal may not be feasible, but enacting reasonable curbs on firearms is
Former Supreme Court Justice John Paul Stevens recently proposed repealing the Second Amendment. “That simple but dramatic action,” he wrote, would move the postParkland marchers and activists “closer to their objective than any other possible reform.” But everyone knows repealing the Second Amendment isn’t politically possible anytime soon, if ever. Here in Texas, that seems especially remote.
More importantly, the Second Amendment isn’t an obstacle to the long-overdue fixes under consideration now. At the same time the Supreme Court recognized a personal right to gun ownership, it expressly upheld the constitutionality of reasonable gun safety measures. Who said so? None other than conservative hero Justice Antonin Scalia.
“Nothing in our opinion,” Scalia wrote for the majority in the case known as District of Columbia v. Heller, “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.”
Fully effective background checks that include gun shows and all other sales, waiting periods for buyers, proceedings to remove weapons from those who threaten violence at schools or elsewhere (so-called “red flag” laws), limiting guns in public places, minimum ages for gun purchases or possession, required gun lockers or other safe storage — all these and more are therefore entirely consistent with the Second Amendment.
More than that, the Supreme Court approved of laws banning military-style guns. Scalia noted America’s “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’ ” and acknowledged that those “most useful in military service — M-16 rifles and the like” — could permissibly be outlawed. The AR-15, the semiautomatic rifle used in the Parkland, Newtown and other mass shootings, is a modified version of a weapon of war that retains some military features and can permissibly be banned or otherwise strictly regulated. Ditto for bump stocks, high capacity magazines and other quasi-military devices.
In fact, since the Supreme Court decided Heller in 2008, lower courts have repeatedly approved all kinds of gun safety rules, and the Supreme Court has declined to overturn or even review their decisions. The Giffords Law Center to Prevent Gun Violence report-
ed a few months ago that, “altogether, in the more than 1,230 state and federal court decisions tracked by Giffords Law Center since the Heller decision, courts have rejected the Second Amendment challenges 93 percent of the time.”
One last thing in Scalia’s Heller opinion bears repeating: “Like most rights, the right secured by the Second Amendment is not unlimited.” Yet for some opponents of even modest changes, shouting “the Second Amendment!” has become a substitute for reasoned argument, a fiat intended to shut down discussion. For example, NRA lobbyist Chris Cox recently tweeted “POTUS supports the Second Amendment… and [doesn’t] want gun control.” This shorthand, which often seems to dominate and impoverish the gun debate, willfully ignores that one can “support the Second Amendment” and still favor robust gun safety rules.
As Scalia recognized, all rights have limits, even our most cherished freedoms. The First Amendment protects free speech but that doesn’t mean you can incite violence or publish classified military plans. You have a constitutional right to practice your religion as you see fit, but that doesn’t mean you can interrupt math class to proselytize or wage holy war on people of other faiths. In the famous phrase, “your right to swing your arms ends just where the other man’s nose begins.” The right to gun ownership is limited by the fundamental need to secure public safety — more specifically, the urgent and overriding imperative to prevent more dead schoolchildren.
Neither politically doomed calls to repeal the Second Amendment nor claims that it prohibits stringent safety regulation do much to advance the gun debate. As we numbly watch one mass shooting after another, it’s a debate we badly need to have and then finish, so we can finally make “never again” a reality. Siegel is an appellate lawyer in Houston specializing in constitutional and civil rights cases.