30
Jun
08

Trialogue: 2nd Amendment

Unless you have been underground for the past couple of years, you are aware that the US Supreme Court recently ruled in the Heller case. For the first time in the country’s history, an ultimate legal decision has been made as to whether the right to keep and bear arms is an individual or collective right. The court said a lot of things in its opinion. Of note:

  • The right to keep and bear arms is an individual, natural right that shall not be infringed. What this means is that the right existed before the Constitution existed and that the Bill of Rights spelled out this natural right (enumerated) so as to prevent infringement by government.
  • This individual right is not tied to participation in formal military service.
  • That reasonable regulation, such as preventing convicted felons from owning firearms, is allowed.
  • And that it is unconstitutional for a city (such as DC) to outlaw the use of all handguns.

There are many other things expressed in the opinion, but these are the top of mind “big deals” that are immediately apparent. The NRA and various other gun rights groups have already begun filing actions against cities such as Chicago and San Francisco which have similar, Draconian handgun laws. Heller will be the beginning of a lot of litigation to come. That is absolutely certain.

What I would like to do now is establish a “blog trialogue” with the authors of the Electric Venom and Opining Online blogs. We are going to take a look at various aspects of the Second Amendment and gun laws in the US and bounce some questions off of each other. It may or may not be an effective process, but we are going to try! Comments on any and all of the blogs are welcomed with regard to this trialogue.

First Topic and it is aimed at Opining Online:
I think that both of us agree that firearms are tools and, as such, it’s kind of silly to affix blame for crimes on tools. A car is just a tool, but when somebody runs over and kills a pedestrian with their Ford F150, the truck didn’t do it, the driver did. We don’t have laws that outlaw an F150 because it is used more often in pedestrian killings and we don’t hold Ford Motor Company or the local Ford dealer responsible for the pedestrian death. But we do outlaw certain kinds of firearms and we have tried to hold firearms manufacturers and dealer responsible for crimes committed by individuals who used their products. Long set-up, eh?

We’ve tried a lot of regulations that seem to fly in the face of logic and that also seems to be less than effective. Hell, DC has had their silly handgun ban for many decades and it is still one of the most dangerous places to live in the country in regard to handgun violence. SCOTUS stated that reasonable restrictions are allowable under the Constitution. One would think that reasonable should equal effective, but maybe not. My question to you is multi-part: What is the definition of a reasonable restriction on firearms? How do we determine if that restriction is effective? And, should those reasonable restrictions be harmonized, uniform, across all the States (or should individual jurisdictions be allowed to have their own rules?)? What say you, Ms. Opining?

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2 Responses to “Trialogue: 2nd Amendment”


  1. June 30, 2008 at 6:00 pm

    My answers to the questions:

    What is the definition of a reasonable restriction on firearms?

    In Heller, the Court holds that the Miller decision restricts the 2nd Amendment right to “those in common use for lawful purposes”. Further, it is stated that the Court’s opinion:

    “…should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

    While I personally think that restrictions on carrying firearms in certain places simply renders them defenseless, the SC has specifically allowed such laws. Thus they are for now legally reasonable.

    The Court also held what I’ve always considered a most unreasonable restriction on firearms to be unconstitutional

    “…the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense…is unconstitutional.”

    While “conditions and qualifications on the commercial sale of arms” is a reasonable restriction to prevent straw purchases and sale of those “dangerous and unusual weapons,” it is not reasonable to impose ‘cooling off’ periods, limits on the number of guns that can be purchased in a certain time frame, or to require a proof of need for licensing.

    Therefore, I would define a reasonable restriction as one that does not inhibit the ownership or use of firearms for lawful purposes by a law-abiding and competent adult or of a juvenile under that adult’s guidance.

    How do we determine if that restriction is effective?

    Data, data, and more data, honestly compiled and analyzed without an agenda.

    The restriction that I think will the least effective is the restriction on the mentally ill, because it will be very difficult to enforce without establishing a database of those with such diagnoses. Because these are considered medical conditions, privacy and HIPAA concerns would be difficult to overcome. Further, will this restriction cover all mental illnesses listed in the DSM? If so, would smokers diagnosed as addicted be ineligible to own a gun?

    The next least effective restriction is that on felons. It will certainly be more effective than one on the mentally ill because there is already a database and laws prescribing a greater sentence for a crime committed using a gun. This does not really restrict ownership, it just allows punishment for it. So it’s effectiveness is an after-the-fact one. Better than nothing.

    Should those reasonable restrictions be harmonized, uniform, across all the States?

    Incorporation of the 2nd Amendment into the 14th Amendment should happen. I was somewhat disappointed that wasn’t addressed in Heller. Other than that, no.

    Open carry makes perfect sense in parts of the country, while it might create a little chaos in San Francisco or New York City. The SC did not hold that reasonable restrictions must be made. Unless the restriction goes beyond reasonable, each state (and probably jurisdictions within a state) should be allowed to define their own.


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