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Chip Morgan: Guns, Heller and the high court

  • Dick Heller signs an autograph outside the Supreme Court in Washington on June 26, 2008, after the court ruled that Americans have a constitutional right to keep guns in their homes for self-defense, the justices’ first major pronouncement on gun control in U.S. history. AP file



For the Monitor
Saturday, March 10, 2018

It is heartening that after the shooting deaths at a Florida high school, public discussion of gun-related issues still continues, in large part thanks to the efforts of students from that school, and a few courageous businesses.

Less than a month has passed, however; so the risk remains that the topic will once again fade quietly away. In hopes of informing further discussion, I offer some specifics from the Supreme Court 2008 decision, District of Columbia v Heller, which was the first, in over 200 years, to interpret the Second Amendment as allowing a private person to own a gun for personal protection. (I am inspired by and would refer anyone interested to an article by professor Robert Martineau, “Don’t confuse Second Amendment rights with gun rights.”)

The court’s decision, written by Justice Antonin Scalia, interpreted the amendment as conferring the right of an individual to “possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The idea that “bear arms” extended to a nonmilitary meaning was intensely debated. To my mind it is incompatible with the amendment’s phrasing; and New Hampshire’s own Justice David Souter agreed, asking, “You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” to which the U.S. solicitor general conceded, “I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.”

It is imperative to note that Scalia asserted that the right the court affirmed was by no means open-ended, stating specifically: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The Heller decision lists the kinds of restrictions not invalidated: “For example, concealed weapons prohibitions have been upheld under the amendment or state analogues. 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.”

That is, the restriction of concealed weapons, the forbidding of guns in schools and the imposition of regulations on gun sales are all specifically allowable.

Also, Scalia wrote, “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.” (“Miller” refers to the 1939 case challenging the National Firearms Act of 1934.) In other words, the prohibition of “dangerous and unusual weapons” – and, presumably, the definition of those terms – is a “historical tradition” that retains its validity. Who would argue that rifles such as the AR-15 are not “dangerous”? If they have become not particularly “unusual,” that’s a grim consequence of and commentary on the marketing of weapons designed to inflict maximum damage.

Since Heller, restrictions on the purchase and ownership of guns have in almost every case been upheld by courts, such as a recent decision on California’s 10-day waiting period for gun purchases.

When the NRA and its supporters argue that they are defending a constitutional right, they ignore the judicial opinions interpreting the Second Amendment. No court, for example, has ever held that the amendment covers the capacity of magazines. Any “right” other than the specifically limited one named in Heller merely reflects legislative choice, not a constitutional right.

Whatever one may have thought about the NRA’s statement way back in October of last year, following the Las Vegas shooting, about their silence after the Florida school deaths, about the president’s recent equivocal comments about gun control, the tiny legislative steps just taken by the Florida legislature are completely constitutional, as would be far more decisive ones to limit citizens from “keep(ing) and carry(ing) any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Here’s hoping that we – individual citizens, businesses, legislators – will continue to support the efforts of those Florida students to change the U.S.’s sadly earned reputation as the world’s least safe country from guns.

(Chip Morgan lives in Hopkinton.)