Jan 9

Issue: Second Amendment RSS

Constitution Check: Are there no limits on Second Amendment rights?



Posted 3 months, 10 days ago.

By

Lyle Denniston looks at some recent quotes about the restricted rights from gun owners, which show conflict over the Second Amendment even among people on the same side of the issue.

gunswideTHE STATEMENTS AT ISSUE:

“The fact is, all constitutional rights are regulated, always have been, and need to be.”

 – Dick Metcalf, in an article titled “Let’s Talk Limits,” published last October by Guns & Ammo magazine, leading to his firing as a columnist for that publication, as recounted in a story January 5 in The New York Times.

“We are locked in a struggle with powerful forces in this country who will do anything to destroy the Second Amendment.  The time for ceding some rational points is gone.”

 – Richard Venola, a former editor of Guns & Ammo, in a comment quoted by The Times in that same story.

WE CHECKED THE CONSTITUTION, AND…

In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights.  That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment.  The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.

The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.”  Is that the same thing as saying that government may pass “no law respecting” gun rights?

Let us suppose that, constitutionally speaking, those two phrases do mean the same thing.  But, as history has shown, there if flexibility in constitutional meaning: “No law,” for example, does not really mean “no law.”

The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court.

The reality is that one can look in vain throughout the entire history of the First Amendment for any indication that the rights to religious and press freedom, the right to free speech, and the right to complain to the government about one’s “grievances” are absolute rights, beyond any type of official regulation.

Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.”  Famously, the court has said that one has no right to shout “Fire!” in a crowded theater.  Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.

In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment.  In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense.  It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.

That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.”  But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.”  It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.

Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights?  If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes.  Government can “trespass” on private property to put out a fire, for example.

Still, the debate goes on about when, or if, government should have the power to regulate gun rights.  The statements quoted above, from two gun rights enthusiasts, suggest that even within that community, there can be disagreement about whether the time has come to agree on some “rational points” about the Second Amendment.

The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment.

Up to now, however, the Court does not seem to sense that need.  It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level.  The court did not go further to explain what it would allow in gun regulation by state and local governments.

It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?

However, the Court has resisted giving an answer to any follow-up questions.  And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.

Gun control will go on being an issue in politics and in government, at all levels, but the constitutional rules that could shape how for government may go remain unmade.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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