Allan Herschlag lives in Concord.
“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…”
More than four years ago I wrote a My Turn on a Supreme Court case, the District of Columbia vs. Heller, decided on June 26, 2008. The case before the court focused on an individual’s right to own a hand gun.
While the five to four majority opinion was controversial, it was controversial on both sides of the aisle. What I found most interesting was that the prevailing opinion was penned by one of the most stalwart conservatives on the court, Justice Antonin Scalia.
Now, for the record, I would be hard pressed to find too many opinions by Justice Scalia that I would concur with, but putting that aside and putting aside whether I agree or disagree with his opinion on Heller, he goes out of his way to state that,“Like most rights, the Second Amendment right is not unlimited…”
Why would he do that? The court was asked if the District of Columbia had the right to ban ownership of handguns. Couldn’t he have just said no they don’t? What was his reason to expand on his opinion to include being able to ban certain weapons? It certainly wouldn’t have been the first time the court ruled narrowly and left other questions, not specifically brought before the court, unanswered.
There were those to the right of Scalia that felt his opinion didn’t go far enough by finding the Second Amendment is not absolute and those to the left that felt he had mined new ground in finding a citizen’s right to own firearms.
Here are two snippets from Scalia’s opinion.
“The Second Amendment protects an individual right 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.”
But he further states:
“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: 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 fire- arms 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.”
Now you can see why his opinion made very few happy. Scalia found that you have a right to own a weapon for personal protection, but he also found that there is no constitutional right to own any and all weapons.
All too often we hear those espousing Second Amendment rights as incontrovertible, god given, absolute. They state the Constitution prohibits any limitations on gun ownership. But Scalia through his parsing of the wording of the Second Amendment, historical review and case law finds otherwise.
On the other side, the left was upset, because Scalia found an individual’s right to own weapons, not just someone who was or is a member of a militia.
Reading Scalia’s opinion and looking at the types of arms and ammunition being sold today, it is with certainty I believe, there is a list of weapons that can be restricted or banned from private ownership.
So when we discuss gun laws or the lack of them and we hear the NRA tell us that the Second Amendment is absolute, why is it that we rarely hear Heller quoted?
Here’s what is really concerning — that the current majority of the court has expressed opinions that Heller doesn’t go far enough.
Here’s what concerns me — That the gun laws being debated in Congress will barely make a difference in the devastation caused by guns used to slaughter people in our schools, churches, synagogues, malls, night clubs, concerts, neighborhoods. That it will barely reduce the number of suicides where a gun is used.
We can have reasonable gun laws in this country. We can have gun laws that don’t infringe on the Second Amendment. We just choose not to.