Allan Herschlag: Before you debate gun rights, read ‘Heller’

For the Monitor
Published: 11/17/2018 12:14:49 AM

There have been any number of letters and op-eds about guns, their place in our society, who has the right to own them and if any of these firearms can or should be regulated.

This article is not so much about my opinion but perhaps an outline for the parameters on a discussion on understanding that the Second Amendment is not an absolute right without allowable limitations.

So here are some quotes relating to this issue:

“Like most rights, the right secured by the Second Amendment is not unlimited.”

“Through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

“The majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

“Nothing in our opinion should 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.”

“Another important limitation on the right to keep and carry arms – prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

If you think the quotes come from some left-leaning anti-gun group, you’re wrong. If you think this is part of the Democratic National Committee’s platform, you are wrong. And if you think this is something I concocted, you are wrong.

In fact, the quotes are from a Supreme Court ruling, District of Columbia v. Heller. The majority opinion, which the above is quoted from, was written by a justice who, according to Wikipedia, “espoused a conservative jurisprudence and ideology, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He was a strong defender of the powers of the executive branch, believing presidential power should be paramount in many areas. He believed that the Constitution permitted the death penalty but did not guarantee the right to abortion or same-sex marriage, and that affirmative action, as well as most policies that afforded special protected status to minority groups, were unconstitutional. These positions earned him a reputation as one of the most conservative justices on the court. He filed separate opinions in many cases, often castigating the court’s majority using scathing language.”

The justice who wrote the quoted material, the majority opinion for the court in the Heller case, is the late Antonin Scalia. In his full opinion, he writes that there is nothing in the Second Amendment to construe that the right to own and carry weapons is unrestricted.

In recent letters, writers have stated that the Second Amendment is a God-given right. Far be it for a heretic like me to challenge whether God has anything to do with this. Here’s what I think: Before anyone writes another letter, makes another speech, offers another opinion about gun rights, read District of Columbia v. Heller.

Heller was a case about whether anyone in the District of Columbia could own a handgun. The court ruled against the district, but at the same time the court stated that Second Amendment rights are not unlimited.

In fact the court is clear that it is constitutional to restrict the carrying of firearms in certain areas and to restrict the ownership of certain weapons. And while the opinion was written in 2008, it specifically uses the example of a school as a place where firearms can be prohibited. The opinion specifically states that restrictions can be placed on the owning and carrying of “dangerous and unusual weapons.”

So let’s have a discussion that acknowledges the right to own and carry firearms but doesn’t have our country looking like some dystopian society, fearful that even historic regulations on guns will lead to the loss of personal freedoms, the right to protect yourself or the erosion of the Second Amendment.

(Allan Herschlag represents Ward 2 on the Concord City Council.)




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