Dec 18

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Constitution Check: Is the Supreme Court partly to blame for Newtown?



Posted 1 year, 4 months ago.

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Lyle Denniston looks at how the Supreme Court’s interpretation of the Second Amendment leaveslegislators entirely free to write new regulations against gun possession in sensitive public places.

The statements at issue:

“The gun lobby, timid politicians and the Supreme Court continue to aid and abet rampant gun violence that is nothing less than domestic terrorism, carried out with weapons of mass destruction that are too freely owned and carried.”

– Arnold Grossman of Denver, author of a recent book, One Nation Under Guns: An Essay on an American Epidemic, in a letter to the editor of The New York Times on December 15, commenting on the mass murder of students in Newtown, Connecticut.

“This latest terrible tragedy at Sandy Hook Elementary School is no fluke.  It is a result of the senseless, immoral neglect of all of us as a nation to fail to protect children instead of guns…”

– Marian Wright Edelman, president of the Children’s Defense Fund, in a comment quoted in The Washington Post on December 15.

“The day before a gunman massacred 20 schoolchildren in their classrooms in Connecticut on Friday, lawmakers in Michigan passed a bill – over the objections of the state’s school boards – that would allow people to carry concealed weapons in schools.”

– Michael Cooper, New York Times reporter, in the opening paragraph of a story published on December 16 under the headline, “Debate on Gun Control Is Revived, Amid a Trend Toward Fewer Restrictions.”

We checked the Constitution, and…


Americans’ belief in their Constitution and in its power to right the wrongs in society leads them inevitably to look there for a solution to a tragedy like the killing of 20 students in their Connecticut classrooms. If only the Supreme Court could change its mind about the Second Amendment “right to keep bear arms,” lawmakers and judges might find a way to reduce gun violence.

As a search begins for ways to ensure that there are no more Newtown tragedies, it is not at all surprising that some would see a direct connection between the expanding constitutional right to have a gun–and that right is, indeed, expanding–and the occurrence of another massacre with guns. As is often true with such suggestions, it is too simplistic, as a matter of constitutional reasoning as well as practical reality.

Establishing a new constitutional right, as the Supreme Court did in 2008 in interpreting the Second Amendment to include a personal right to possess a gun for self-defense, does not ensure that such a right will not be abused. And neither does the expansion of that right to include carrying a gun in public places, as a federal appeals court in Chicago ruled just three days before the shooting in Connecticut. The Supreme Court had recognized a gun possession right within the home, and the appeals court said the logic of that extended outside the home, too.

Both of those decisions were based on the protection of a social value: the capacity to defend one’s self against an imminent physical threat. And neither one of them suggested that a school is a proper place to have a gun and have it ready for use. Indeed, both of those rulings left legislators entirely free to write new regulations against gun possession in sensitive public places, and to impose strict enforcement of such limitations.

Constitutional rights, however established, are never so absolute that they tell the people that “anything goes.” Having the right to practice one’s religious faith does not create a right to impose the tenets of that faith on others; one can try to persuade, but cannot coerce. Having the right to publish a newspaper does not generate a right to print absolute falsehoods that cause injury. Having the right to be free from police invasions of a home does not create a right to use a home as the headquarters of a criminal gang.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Having a right, constitutional or otherwise, is an opportunity but it is not a license. And having Second Amendment rights is no different in that respect.

If Americans are persuaded that the courts are getting the Second Amendment wrong, and are convinced that cutting back on the amendment’s scope is a way to reduce gun violence, they have it within their political power to demand that legislatures apply that amendment sparingly, and they have it within their citizen power to try to get the Constitution amended.

And, when a new court case arises in which a plea is made to expand the Second Amendment further, there are opportunities for citizen activism, to try to help shape how that case will be decided.  That, though, is supposed to be an orderly process, in which the ultimate value is reasoned judgment, not bumper-sticker slogans and loose logic.

Amid the grieving over the Newtown deaths, and amid the new national debate that seems to be developing over what to do about such tragedies, reflection and creative imagination might well serve one of the rights guaranteed by the First Amendment: the right to “petition the government for a redress of grievances.”

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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