The Constitutionality of Gun Control

by Daniel Horwitz

While debating the merits of stricter gun control legislation in the wake of this month’s tragic massacre in Newtown (see: GunControl and the Second Amendment), it is essential to remember that there are actually two separate issues at hand that must each be considered before any new law is enacted. 

The first of these issues – and as you’ve properly pointed out, the only one that is currently being discussed – is what should be done to prevent mass shootings like those we’ve witnessed in places like Newtown, Oak Creek, Aurora and Virginia Tech from occurring again.  Though of critical importance (there havebeen 181 school shootings alone since Columbine), this is really no more than a simple public policy question: in sum, what laws, if any, should be enacted to protect the public from this kind of gun violence going forward? 

Several proposals have been offered up that could (potentially) further this goal.  On the first day of the new Congressional session, for example, Senator Dianne Feinstein plansto reintroduce the expired 1994 Federal Assault Weapons Ban— a bill which, among other things, would prohibit the manufacture for civilian use of certain semi-automatic firearms, and would outlaw the sale of what have become known as “high capacity magazines.”  Alternatively, Congress could succumb to pressure toclose the “gun show” loophole, or could require that all firearms be registered with the Federal government (a measure that PresidentLyndon Johnson unsuccessfully attempted to enact back in 1968).  In contrast to policies like these, however, organizations like the NRA and Libertarian Party (which have heavilycriticized the purported benefits of the above proposals) have instead suggested that armingschool officials would be the best way to protect students from future mass shootings— suggestions for which they have been criticizedmercilessly in turn.  And on the other side of this extreme, others still have called for strict and comprehensive Federal gun control legislation similar to the successfuland borderline prohibitionary regulatory regime currently employed in Japan. 

The second issue, however – and every bit as important, if not more so –  is what can be done.  By this I mean the precise consideration that you have raised: what we as a nation can do about gun violence that would be constitutionally permissible.  Constitutional governance is the essential foundation upon which our Republic is based, and the Constitution places structural limits on state and Federal governments that necessarily take certain policy choices off the table. 

Crucially, our commitment to Constitutional governance endures whether or not new legislation would be desirable from a public policy standpoint.  Though the vast majority of us would support laws, for example, that prevent Westboro Baptist Church from picketing the funerals of slain U.S. service members (or from harassing grieving Sandy Hook Elementary School parents as they lay their children to rest, as that church recentlyclaimed it would do), the Supreme Court has nonetheless held that theFirst Amendment flatly prohibits such legislation.  Similarly, many are distressed whenever a murderer is set free because police obtained evidence illegally in order to secure his conviction.  Even so, the Fourth Amendment’s exclusionary rule compels this result, and it will continue to do so unless it is repealed. 

Though the Constitution does not turn a completely blind eye to public policy considerations (it instead requires that laws infringing upon fundamental constitutional rights be “narrowly tailored to achieve a compelling governmental interest”), certain constitutional rights do trump the government’s interest in promoting public safety.  And despite the fact that the Supreme Court neglected to specify a standard of scrutiny when it decided the issue in 2008, it nonetheless made clear that “the right to bear arms” guaranteed by the Second Amendment is included among them.  Thus, even in the face of the incomprehensible pain caused by the Newtown shooting, and even though – as Justice Scalia recently observed – “the Second Amendment [may be] outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem[,]” the Second Amendment nonetheless forbids Congress from enacting a certain class of gun control measures— public safety be damned.  

Though this may sound extreme, it is really just another iteration of the classic tension between “liberty” and “security” that has existed in constitutional jurisprudence for centuries.   Like the First and Fourth Amendment examples above, then, unless the constitutionally-enumerated right to bear arms is lawfully repealed, “it is not the role of [the Supreme Court] to pronounce the Second Amendment extinct.”  Since nobody appears ready to launch a national campaign to repeal the Second Amendment, however (at least not yet), the essential question that remains is which precise policy choices the Second Amendment prevents Congress from pursuing. 

Because the Supreme Court’s modern Second Amendment doctrine is only four years old, the full scope of the Second Amendment’s guarantee is not yet entirely clear.  In the landmark 2008 case District of Columbia v. Heller, a divided Supreme Court held for the first time in history that the Second Amendment conferred an individual right to possess a firearm unconnected with service in a militia, as well as a right to use that firearm for traditionally lawful purposes like self-defense in the home.  Though the decision remains controversial for several reasons, the Heller Court’s holding that individual self-defense is “the central component” of the Second Amendment was subsequently applied to the nation as a whole in the 2010 case McDonald v. City of Chicago. 

While the purposes underlying the Second Amendment were not essential to these holdings (according to the Court, the right to bear arms exists whether or not the original reasons which prompted its enumeration remain persuasive today), the Heller Court did recognize three distinct reasons “why the militia was thought to be ‘necessary to the security of a free state’” when the Second Amendment was ratified.  First, Justice Scalia explained, “it is useful in repelling invasions and suppressing insurrections.”  Second, “it renders large standing armies unnecessary.”  Third, and along the lines of what you referred to as the “resistance army in waiting” interest, the Court noted that “when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”  This final interest was discussed further in McDonald, where the Court explained in greater detail that the 14th Amendment (which was held to apply the Second Amendment to the states) was enacted in part to put an end to southern states’ “systematic efforts to disarm and injure African Americans” after the Civil War. 

Despite acknowledging that protecting citizens’ ability to resist tyranny was among the reasons why the right to bear arms was enumerated, the Supreme Court nonetheless made clear in Heller that this purpose does not define the scope of the right that the Second Amendment confers.  Thus, citizens are not entitled to the same military-grade weaponry that our service members enjoy, and as such, will never be able to claim entitlement to weapons like AK-47s, tanks or stealth-converted Blackhawk helicopters along the lines of those used to overtake Osama Bin Laden’s compound.  Though the Second Amendment may have been enacted in part – for purposes of tyrannical deterrence – to help citizens resist government, it does not give citizens the right to own the artillery necessary to overthrow it.  As explained below, however, citizens may indeed claim a constitutional entitlement to weapons commonly used for self-defense, but at least to this point, that’s about the full extent of what the Second Amendment protects. 

The practical effect of both Heller and McDonald has been that neither the Federal government nor state governments may prohibit law-abiding citizens from keeping handguns in their homes for personal protection, nor enact legislation rendering handguns unusable for that purpose.  This specific focus on handguns is not accidental, and the reasoning that underlies it is important.  Expounding upon the holding of the 1939 case United States v. Miller, the Supreme Court explained in Heller that while the Second Amendment does protect firearms that are “in common use,” it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”  Thus, the Court reasoned, because “handguns are the most popular weapon chosen by Americans for self-defense in the home . . . a complete prohibition of their use is invalid.” 

Whether one favors the Second Amendment or not, it is difficult to justify this particular holding.  Which firearms are “in common use” is necessarily a function of which firearms are legal, and as such, the logic that underlies this premise is fatally circular.  As Justice Breyer exclaimed in dissent: “On the majority's reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”  Whatever the merits of this holding, however, the Supreme Court is vested with final authority to divine constitutional meaning, and it represents what is currently the law of the land. 

In light of Heller and McDonald, then, what kinds of gun regulations are permissible today?  Blanket prohibitions on keeping handguns for self-defense in the home are clearly unconstitutional, and the Second Amendment probably confers a right to carry handguns for self-defense outside the home as well.  (Indeed, just three weeks ago, the Seventh Circuit Court of Appeals held that Heller and McDonald compelled such a result.)  That said, however, the post-Heller world has not turned out nearly as well as gun advocates had hoped.  By January 2, 2009, lower courts had issued rulings on all manner of gun control regulations, and accordingto UCLA law professor Adam Winkler, the scoreboard was “Gun Control 60, Individual Right 0.”  As of December 18, 2012, SupremeCourt correspondent Adam Liptak further explained that there had been “more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and vanishingly few of them [] succeeded.”  Undoubtedly, these decisions have hinged upon the following crucial and expansive dicta from Heller itself:

“[N]othing 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 . . . [or] the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

With the Constitutional path to stricter gun control legislation thus relatively (though not entirely) clear, the bulk of the debate can safely return to public policy.  Whether any of the proposed measures described in this essay’s introduction will in fact succeed in reducing gun violence, however, and whether their predicted public policy benefits outweigh competing concerns (such as the undesirability of restricting law-abiding citizens’ ability to own guns, making it difficult to hunt recreationally, inhibiting deterrence, or weakening citizens’ ability to resist a hypothetical tyrannical government) are questions for your Congressman.  That said, however, I’ll suggest one potential policy option that, despitesomewhat persuasive criticism, could be a good place to start: getguns out of the hands of people who don’t even want to own them, thereby taking thousands of high-powered weapons off the street without stepping on anybody else’s toes.  

 Daniel Horwitz is a third year law student at Vanderbilt University Law School, where he is the Vice President of Law Students for Social Justice. He can be contacted at Daniel.a.horwitz@vanderbilt.edu.

Top Stories

Why the Second Amendment: not Bambi, not burglars.

Kevin D. Williamson writing in National Review makes the same point as I did (See Gun Control and the Second Amendment) in explaining that "the second amendment is about protecting ourselves from the state."

"There is no legitimate exception to the Second Amendment for military-style weapons",  says Williamson, "because military-style weapons are precisely what the Second Amendment guarantees our right to keep and bear. The purpose of the Second Amendment is to secure our ability to oppose enemies foreign and domestic, a guarantee against disorder and tyranny.... Liberals are forever asking: 'Why would anybody need a gun like that?' And the answer is: because we are not serfs. We are a free people living under a republic of our own construction. We may consent to be governed, but we will not be ruled...." (Read the full article Regulating the Militia.)

Top Stories

Heritage list two EPA resolutions as among ten worst in 2012

The Heritage Foundation has issue a report analyzing the ten worst regulations of the year. One can see the entire report at this link. There were two regulations that particularly interested me.  There are the second and third of the ten worst. Below is an excerpt explaining these two regulations:

2. EPA Emissions Standards
The EPA in February finalized strict new emissions standards for coal- and oil-fired electric utilities. The benefits are highly questionable, with the vast majority being unrelated to the emissions targeted by the regulation. The costs, however, are certain: an estimated $9.6 billion annually.

3. Fuel Efficiency Standards
In August, the National Highway Traffic Safety Administration, in tandem with the Environmental Protection Agency, finalized fuel efficiency standards for cars and light trucks for model years 2017–2025. The rules require a whopping average fuel economy of 54.5 miles per gallon by 2025. Sticker prices will jump by hundreds of dollars.

Do you know what our city says about these regulations? Nashville loves them, so our Metro Council speaking on our behalf says.  Below is the text of a resolution passed unanimously by our Metro Council on November 16th. 

RESOLUTION NO. RS2012-478

A resolution supporting the reducing of greenhouse gas pollution under the Environmental Protection Agency Clean Air Act.

WHEREAS, the scientific community, most notably NASA, NOAA, and the IPCC support the following findings; and

WHEREAS, the decade from 2000 to 2010 was the warmest on record, and 2005 and 2010 tied for the hottest years on record; and

WHEREAS, the current level of CO2 in the atmosphere is approximately 392 parts per million (ppm); and

WHEREAS, one of the world’s leading climate scientists, Dr. James Hansen, stated in 2008: “If humanity wishes to preserve a planet similar to that on which civilization developed and to which life on Earth is adapted, paleoclimate evidence and climate change suggest that CO2 will need to be reduced from its current 392 ppm to at most 350 ppm”; and

WHEREAS, the Environmental Protection Agency determined that current and future greenhouse gas concentrations endanger public health, and according to the Global Humanitarian Forum climate change is already responsible every year for some 300,000 deaths, 325 million people seriously affected, and economic losses worldwide of $125 billion; and

WHEREAS, extreme weather events, most notably heat waves and precipitation extremes, are striking with increased frequency, with deadly consequences for people and wildlife; in the United States in 2011 alone, a record 14 weather and climate disasters occurred, including droughts, heat waves, and floods, that cost at least $1 billion each in damages and loss of human lives; and

WHEREAS, climate change is affecting food security by negatively impacting the growth and yields of important crops, and droughts, floods and changes in snowpack are altering water supplies; and

WHEREAS, scientists have concluded that by 2100 as many as one in ten species may be on the verge of extinction due to climate change; and

WHEREAS, the world’s land-based ice is rapidly melting, threatening water supplies in many regions and raising sea levels, and Arctic summer sea ice extent has decreased to about half what it was several decades ago, with an accompanying drastic reduction in sea-ice thickness and volume, which is severely jeopardizing ice-dependent animals; and

WHEREAS, sea level is rising faster along the U.S. East Coast than it has for at least 2,000 years, is accelerating in pace, and could rise by one to two meters in this century, threatening millions of Americans with severe flooding; and

WHEREAS, for four decades, the Clean Air Act has protected the air we breathe through a proven, comprehensive, successful system of pollution control that saves lives and creates economic benefits exceeding its costs by many times; and

WHEREAS, with the Clean Air Act, air quality in this country has improved significantly since 1970, despite major growth both in our economy and industrial production; and

WHEREAS, between 1970 and 1990, the six main pollutants covered by the Clean Air Act — particulate matter and ground-level ozone (both of which contribute to smog and asthma), carbon monoxide, lead, sulfur and nitrogen oxides (the pollutants that cause acid rain) — were reduced by between 47 percent and 93 percent, and airborne lead was virtually eliminated; and

WHEREAS, the Clean Air Act has produced economic benefits valued at $2 trillion or 30 times the cost of regulation; and

WHEREAS, the U.S. Supreme Court ruled in Massachusetts vs. EPA (2007) that greenhouse gases are “air pollutants” as defined by the Clean Air Act and the Environmental Protection Agency has the authority to regulate them; and

WHEREAS, The City of Nashville prides itself on being a leader in the fight against climate change and for clean air and, by creating the Mayor’s Office of Environment and Sustainability, has shown its ability to be a green leader in the Southeast; and

WHEREAS, The City of Nashville strives to meet the goals set out by the Green Ribbon
Committee’s 2009 Summary Report, which addresses environmental and livability issues in Nashville.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. That the Metropolitan County Council hereby goes on record as supporting the reduction of greenhouse gas pollution under the Environmental Protection Agency Clean Air Act.

Section 2. The Council further goes on record as noting that climate change is not an abstract problem for the future or one that will only affect far-distant places, but rather climate change is happening now, we are contributing to it, and the longer we wait to act, the more we lose and the more difficult the problem will be to solve.

Section 3. We, the Metropolitan County Council, on behalf of the residents of Nashville, do hereby urge the administrator of the Environmental Protection Agency, Lisa P. Jackson, and President Barack Obama to move swiftly to fully employ and enforce the Clean Air Act to do our part to reduce carbon in our atmosphere to no more than 350 parts per million.

Section 4. The Metropolitan Clerk is directed to send a copy a copy of this Resolution to Lisa P. Jackson of the Environmental Protection Agency and to President Barack Obama.

Section 5. This Resolution shall take effect from and after its adoption, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Jason Holleman, Erica Gilmore, Brady Banks, Burkley Allen, ,Lonnell Matthews, Sean McGuire, Bo Mitchell, Davette Blalock.

The Council should admit they did not know what they were voting for when they passed the above resolution, should pass a resolution rescinding their previous support, should condemn the EPA's unauthorized power grab, and condemn job-killing and unrealistic EPA regulations.  

Top Stories

Mayor Karl Dean proposes two new tax break packages for companies

The Tennessean, Joey Garrison, Dec 28, 2012- Fresh off delivering $66 million in incentives to jump-start HCA’s move to a future Midtown high-rise, Mayor Karl Dean’s administration has orchestrated smaller property tax discounts to aid the growth of two other companies. (link)

My Comment: This practice of giving tax breaks for companies to stay or locate in Nashville is troublesome. Is this really necessary? Is this going to be the new norm?  Every company in town should threaten to relocate unless they are given the same deal. I hope the Council takes a hard look at this.

Top Stories

Council to weigh in on voucher program, charter authorizer

City Paper, Steven Hale- The Metro Council will consider a resolution “opposing all state legislation” that would create a state voucher program or a state charter authorizer without state funds being granted to local school districts to cover the costs of such programs.

The non-binding memorializing resolution, sponsored by Councilman Steve Glover, would have no legislative effect, but will serve as a chance for the council to weigh in on two issues that appear to be quickly heading down the tracks of the state legislature. The council is scheduled to take up the resolution at its Jan. 8 meeting. (link)

My Comment: I hope the Council is not asleep at the wheel again when this comes up for a vote. A couple months ago the Council allowed a memorializing resolution to pass that stated global warming was a fact, that the Council approved of the EPA's regulating of CO2 (which Congress had never authorized), and urged vigorous enforcement of the EPA's arbitrary CO2 standard. The EPA has assumed authority to keep plants from opening or expanding, to mandate auto mileage standards and keep power plant from expanding and doing any number of things and our Council went on record approving of it. Later some members told me they really didn't feel that way but for one reason or the other did not vote "no."  

These memorializing resolutions do matter. Council should take them seriously.

After the local School Board three times turned down the Great Hearts Academy application, I think it is time to let the State be the entity that approves charter schools. Unfortunately, we have too many people in Metro who are more concerned with social engineering than they are excellence in education. Even if this resolution passes, it should not pass unanimously.

Top Stories

The new January 8, 2013 Metro Council meeting agenda is now available

The new January 8, 2013 Metro Council meeting agenda is now available. You can find the agenda at the link: Metro Council Agenda

If you will wait, I will read it for you and tell you what is important, but if you just can't wait have at it. 

Top Stories

I-40 Christmas cheer

I don’t know who deserves it, but someone deserves a thank you and praise for spreading Christmas cheer along I-40.

Along about mile maker 354 heading west from Knoxville, a couple miles before you get to the Kingston Pike exit, there is cedar tree off of the shoulder of the road that is decorated every year at Christmas  time. Large Christmas ornaments and tinsel garland adorn the tree and underneath there are large wrapped gift boxes. The ground is mowed around the tree and it is about twenty feet off the road and it stands out.

I was trying to think back, how long this has been going on, and it seems like I remember it from when my thirty-year-old daughter was little, so it must have been going on for about twenty years. As the years have gone by the little tree is now a big tree. My Mom lives in Seymour and my two brothers still live in the Knoxville area so we usually have Christmas at Mom’s. So, I am always driving back from  Knoxville to Nashville, the day after Christmas or maybe the day after that and I always look for the tree.

Mom is 82 years old now and has had some health issues and is frail, but still lives at home. My sister Becky went over a day early this year and prepared the dinner so we were able to have one more Christmas at Mom’s. I wonder how much longer we can carry on this tradition.

We had a wonderful dinner and Christmas celebration. I was good. I did not say anything provocative and I did not allow myself to get offended. Everyone else was good too. My liberal siblings were on their best behavior and did not mention healthcare, or the fiscal cliff or gun control or the recent election. Nothing that would have set off a debate was mentioned. They didn’t bait me.

We had a nice visit before the Christmas dinner, then a wonderful traditional Christmas dinner, and then we exchanged gifts. Not only did we not fight, no one even tried to turn on the TV. After the exchange of gifts we then had more pleasant interesting conversation and were able to discuss important meaningful topics but avoided those most likely to lead to a nasty political clash. There was lots of joking and laughter.

We then started singing songs. We did Christmas carols and Christmas songs and gospel songs. We did  Elvis Presley’s Blue Christmas with extended impromptu recitations accompanying the song. Fueled by the wine we were drinking, we thought everything was clever and funny. We then did the Johnny Cash song catalogue that we could recall, and Eagles and Gentle on my mind and Patsy Cline and Kris Kristofferson, and some Willie and The Great Speckled Bird and It wasn’t God who Made Honky-tonk Angels and snippets on songs we didn’t know but wish we did. We sang for hours.

My lovely wife who has Alzheimer’s’ and who cannot remember the most rudimentary things and has lost most of her vocabulary skills, knows all the words to lots of Christmas songs and old songs. She sang with the rest of us and enjoyed herself immensely. We all had such a wonderful, wonderful time.

The next day, after a leisurely breakfast and chatting over coffee, Louella and I headed back home. There could not have been a drearier day. It was mid day, but raining and foggy and dark. I was in a good mood however, still in the glow of a wonderful Christmas. I approached the spot where the tree is usually decorated. I wondered if it would still be there and decorated for yet another year. It was. It brought a smile to my face.

There have been years when after Christmas was over and I was headed home when I was lonely and alone or some years when I was going back home with my daughter and would have to return her to her mother and I was already missing her, that I would be real blue about the time I got to that point in the trip.  When I would see the tree, however, it would cheer me up and at least for a while it would make the post-Christmas blues not so bad.

I have wondered about who does the decorating of this tree. Is it a road maintenance crew, or a highway patrolman? Is it someone who lives nearby? Do they park on the shoulder and do it hoping the highway patrol doesn’t catch them, or do they slip over a fence from beyond the right-of-way and carry in the decorations and decorate it. It has been going on so long, I wonder if it is a family tradition being done by the children of the people who originally decorated it? I don’t know.

I would bet I am not the only one who over the years have had their spirits lifted by that tree or who has had the glow of Christmas good cheer extended a little longer. By this time, the people who decorate that tree every year, have probably brought Christmas cheer to hundreds of thousands of people.

If by some chance the people who are responsible for decorating that tree on the interstate right of way should read this, know that someone appreciates what you do. You have brightened my Christmas for many years now. God bless you. Merry Christmas and a happy new year.

Top Stories

Merry Christmas

Top Stories

The Lives of Others- A fantastic movie!

I just watched this movie tonight and I highly, highly recommend it. The acting is superb and it a fantastic movie. You feel like you are experiencing the events portrayed. It has just made my list of one of my all time favorite movies. If you are a Comcast subscriber it is available for free on On Demand.

There are no exciting chase scenes in this movie. There are few moments of high edge-of-your-seat drama, but it is a chilling film. It shows how people live their lives in a police state and how constant surveillance and oppression becomes a normal existence and how resistance can seem futile.  The film is in German with English subtitles, but after the first few minutes you do not even realize you are reading.

Those who came into adulthood since the fall of the Berlin wall and those who lived through the cold war but did not pay attention need to watch this film. Many will never read a history of the era and never read a massive tome by Solzhenitsyn or other defectors who told of the horrors of life behind the iron curtain, but watching this film will let one know what life in a totalitarian society is like.

Unfortunately, our culture and academia never thought it appropriate to be overtly anti-Communist. The liberal establishment never wanted to call evil, evil. From the very first until the bitter end, Communist regimes always had Western intellectuals, and Hollywood-types and media opinion leaders who were their apologist. To boldly proclaim we were the good guys in the cold war was consider jingoistic.The liberal establishment never wanted to destroy communism, but wanted to co-exist with it and sought "understanding." Therefore, they did not want to expose the evil for what it was.

Hopefully, communism has been placed on the "ash heap of history" and will not be revived but people need to know why the evil empire really was evil.  There are still many who are enthralled by Marxism and still think a strong government is necessary to achieve the perfectibility of man. They excuse a lot because they believe the goal is so noble. They may condemn the "excesses" of the communist experiment but do not reject the premise. Whether it is a revival of communism or totalitarianism under some other name, I fear that we have not seen the last totalitarian police state.

Please watch this movie and recommend it. Everyone needs to see it.

The Lives of Others (2006) Das Leben der Anderen (original title)

137 min  -  Drama | Thriller  -   23 March 2006 (Germany)

Ratings: 8.5/10 from 137,877 users   Metascore: 89/100 
Reviews: 354 user | 194 critic | 39 from Metacritic.com

In 1984 East Berlin, an agent of the secret police, conducting surveillance on a writer and his lover, finds himself becoming increasingly absorbed by their lives.

Director:  Florian Henckel von Donnersmarck

Writer: Florian Henckel von Donnersmarck

 Stars: Ulrich Mühe, Martina Gedeck and Sebastian Koch | See full cast and crew

  

Top Stories

Gun control and the Second Amendment

By Rod Williams, Dec. 24, 2012- Following the horrific slaughter of innocent children in Newtown Connecticut, there has been a renewed call for serious gun control. Peirs Mogan, Bill Moyers, and a host of other popular voices have been asking when we will get serious about gun control. They are incredulous that we alone, among advanced industrialized countries, allow almost unlimited access to guns.

 Recently, Moyers opined that those who support the right to bear arms, "would have us believe that 'a well-regulated militia' of a sparsely populated frontier in the eighteen century really means tolerating a wild west in the twenty-first century? They say, 'Don't tread on us. Get off our well-armed backs. There is nothing you can do.' Of course there is: register all guns, license all gun owners, require stringent background checks, get tough on assault weapons of any kind, crack down on high-capacity ammunition..."

President Obama has appointed a commission to advise him on what should be the response to the Newtown tragedy and has set a January deadline for the commission to report back. "This is not some Washington commission," he said. "This is not something where folks are going to be studying the issue for six months and publishing a report that gets read and then pushed aside," Obama said. "This is a team that has a very specific task to pull together real reforms right now."

If appears that the advocate of real gun restrictions are serious. The anti-gun forces ask why does anyone need a military-styled gun. They will say sportsman don't need them and one does not need them for self protection. Of course "military-style" or "semi-automatic" is often not a serious distinction. Any weapon that can fire each time you pull the trigger without reloading or taking action to put a round in the chamber is semi-automatic and a lot of what makes a rifle "military-style" is simply cosmetics. But, we know what they mean: Why does one need an AK-47 or similar weapon?

The constitution gives us the right to bear arms. Why? Should that right extend to military style weapons? If we have the right to own an AK-47, why do we? Even gun enthusiast will often justify gun ownership because they will say they like to hunt or want a weapon for self protection.

The truth is, we do not have a second amendment for the purpose of hunting or self protection. We have a second amendment because we the people are a resistance army in waiting to stand up to a tyrannical government. The reason we have a second amendment is for a military purpose. The reason we have a second amendment is because the federal government has limited power over the people and the Second Amendment states that in order to maintain a free state, the people must retain the right to keep and bear arms. The Second Amendment does not grant us the right to bear arms. The Second Amendment recognizes we have that right and prevents the government from infringing on it.

Some will claim that in the twenty-first century, a "well-regulated" militia should mean the National Guard. Not so. You and I are the militia. The meaning of "well-regulated militia" is clear.

Some will point to a Supreme Court decision in the 30's that upheld the right of the government to ban sawed off shotguns as permitting reasonable restrictions on the type of weapons one may have. That decision, however, was not a victory for gun control advocates; instead it was a victory for the Second Amendment. The Court's logic in allowing the prohibiting of shotguns with barrels of less than 18 inches was that, that weapon does not have a " reasonable relationship to the preservation or efficiency of a well regulated militia; we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

By that some logic, an AK-47 is a weapon with a reasonable relationship to a well regulated militia. The Second Amendment does guarantee the right to keep and bear such an instrument. The Second Amendment has been interpreted more than once. We have a right to bear arms. To have any meaningful gun control, we would need to repeal the second amendment. I don't see Piers Morgan, Bill Moyers, the President, or the other advocates of gun control mounting a campaign to repeal the second Amendment. If they really believe the second amendment is a relic of a bygone era, why do they not mount a campaign to repeal it. The Constitution can be amended.

The gun control advocates to not want to come out and actually saw we need to amend the Constitution. What they want to do is just ignore the Constitution. They hope the Court will bend to the popular passion of the moment and simply ignore the meaning of the second amendment or they hope a shift in the makeup of the Court will put in place a majority that will just ignore the Second Amendment. They do not want the Court to be a judicial branch, but just another legislative branch that responds to public will.

If the constitution can be ignored and swept aside to allow the popular will to prevail, then all of our rights are in danger of being swept aside. If the Second Amendment can be ignored, so can the First and the Fourth. I have a greater fear of a court that considers the Constitution a document with no real meaning, than I do a fear of violence.

Top Stories