Like most rights, the right secured by the Second Amendment is not unlimited
. . .the right was not a right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose.
These are not the words of a hysteria gun-control advocate. They are instead
the words of the late Supreme Court justice Antonin Scalia, written in
the landmark gun rights case of
District of Columbia v. Heller less than a decade ago.
Scalia, of course, was one of the most conservative justices in recent
history. Scalia simply said what is universally recognized by judges,
legal scholars, and lawyers: that no constitutional rights are absolute.
They never have been. Every single one is subject to some limitations
A brief look at other provisions in the Bill of Rights confirms this. The
First Amendment generally protects free speech. It does not, however,
protect one’s right to bellow speech through a bullhorn at 2 a.m.
in a quiet neighborhood. The Fourth Amendment protects people from searches
and seizures. That right also has multiple exceptions, such as for cases
where police get a warrant authorizing a search. Even our constitutional
right to a jury trial in a criminal case (the Sixth Amendment) doesn’t
apply to cases involving particular minor crimes.
Time, place, and manner restrictions on constitutional rights are as old
as the Constitution itself. Indeed, an interpretation of the Constitution
which considered the Bill of Rights to be absolute would be a recipe for
anarchy. It’s simply impossible to have a well-ordered, civilized
society if individual rights are so broad that they allow harm to be inflicted
on everyone else.
Most Americans recognize and agree with this intuitively, even if they
haven’t spent a lot of time thinking about it. Unfortunately, we’ve
recently been unable to have a rational discussion about guns and the
Second Amendment. Many Americans, including those who own guns, recognize
the need for sensible gun regulations. But that discussion always seems
to gets hijacked by a fringe of absolutists. This small group seems to believe
any restrictions will result in jack-booted government thugs breaking down
our doors and seizing every firearm we have. This inflexible stance is
unique in our consideration of constitutional rights, but it somehow succeeds
in shutting down debate about restrictions completely.
This national paralysis creates absurd anomalies. As many commentators
have pointed out since the Orlando massacre, a person on our government’s
no-fly terrorist watch list can’t board a commercial aircraft in
the U.S. Yet, being on the no-fly list won’t stop them from going
to a gun show and getting any gun they can afford.
The United States had a federal assault weapons ban from 1994 to 2004.
During that time period, people still went deer hunting. People still
kept firearms to defend their homes from intruders. People still went
to shooting ranges to shoot for sport. While the ban was in effect, neither
the ATF, nor FEMA, nor any other diabolical government agency stormed
the country and disarmed its citizens. The sky did not fall.
We should not be under the illusion that any particular form of gun regulation
is a cure-all. Nonetheless, that should not stop us from being able to
consider any regulation at all. We can have time, place and manner restrictions
for firearms just as we have for all our other constitutional rights.
We can have those restrictions in ways which are fully consistent with
the Second Amendment and don’t penalize responsible gun owners.
And there could be no more appropriate time to begin a conversation about
that than right now.