While members of both political parties conduct their usual talks, rigged by gun rights or 2nd Amendment advocates to go nowhere, more and more people are getting killed by gunfire.
They claim the 2nd Amendment speaks very loudly to Congress to keep their hands off citizens’ guns. Does it really? Have you or any of these zealots read the 2ndAmendment? Here’s what it says:
“A well-regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall not be
infringed.”
Do these words speak so loudly that you would support our leaders doing nothing to protect our citizens from dangerous people carrying assault rifles, which can shoot a hundred bullets in a matter of seconds? Let’s look at the 2nd Amendment in its proper context:
The Amendment was ratified in 1791, shortly after the shaky formation of our union. It was passed as a check to congressional power.
The weapon of choice at the time was a musket which shot lead balls or buck and ball ammunition. For close combat situations, rifles were designed to accept a bayonet. The bullet wasn’t invented until 1850, almost 60 years later.
The 2nd Amendment in Context
I have championed justice and the Constitution my entire adult life. After ending my legal career, I have written countless articles and eight legal thrillers about important social justice issues, including this one. It is clear that when evaluating the reach of the 2nd Amendment, like any other, the public good or safety must always override individual rights.
Compare the 2nd Amendment to the 1st. While the 1st Amendment protects the right to free speech in America, everyone accepts that it has limits. For instance, a long line of cases determined that citizens may not shout “fire” in a crowded theatre. The public welfare (people in the theatre) overrides the individual’s right to free speech. Not too surprising, right? Why then are the same arguments so controversial when applied to the 2nd Amendment? Public safety must be weighed against an individual’s right to purchase and own guns for a legitimate purpose.
Compare the 2nd Amendment to the 7th. There have been numerous laws passed to restrict a citizen’s right to sue for civil damages. The Lawful Commerce in Arms Act of 2005 (granting gun manufacturers almost total immunity from civil suit) is one of those laws. Most right-leaning politicians support what has become known as tort-reform. But the 7th Amendment protects a citizen’s right to sue for civil damages. Here’s what it says:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Does anyone reading this article see any wiggle room in the 7th Amendment to permit limiting damages over twenty bucks? Does anyone see where the 7th permits immunity in certain politically charged situations, like gun, drugs, or other dangerous products?
Conservative judges and legislatures happily restrict a citizen’s right to sue corporations because of carefully worded, fine-print arbitration clauses. Many Republicans and some Democrats have no trouble ignoring the constitutional mandates of the 7th to pass draconian restrictions on lawsuits or damage awards.
As I stated earlier, I support and defend the Constitution. I acknowledge that competent law-abiding adults in the United States have the right to own shotguns and hunting rifles. This right is not just grounded in the 2nd Amendment, but in our basic right to self-defense or protection.
However, while the 2nd Amendment establishes the right of private citizens to own guns, it is not unlimited. In 2008, the United States Supreme Court decided District of Columbia v Heller. The High Court ruled that the 2nd Amendment protects an individual’s right to bear arms. But it also said this:
“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 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.”
The more one studies the Constitution, the more one realizes it is a living, breathing document, subject to change and interpretation. The current controversy over Roe v Wade is a good example. And speaking of Roe, why are unborn children so precious to certain politicians, they are willing to overturn 50 years of United States Supreme Court precedent, but mass shootings of born children are not enough to pass meaningful, constitutional, gun control legislation? Why do hypocritical right-leaning politicians view the 2nd Amendment as more sacred than any of than the others? I think you know the answer to that.
Inadequate Laws
Despite clear legal and constitutional authority to enact sensible gun control legislation, current federal laws are woefully inadequate. Any adult who has no disqualifying criminal or psychiatric history may easily purchase a firearm. (Some states, Connecticut, and New York, for example, are more restrictive—additional evidence that sensible gun control is constitutional.)
The so-called Brady Bill, named for President Ronald Reagan’s press secretary, James Brady (who took a bullet intended for Reagan), mandates background checks of gun buyers, but only if the seller is a licensed dealer. Private sales, including those at gun shows or online, are exempt.
Worse, background check records are not kept—The “Firearm Owners Protection Act” prohibits the creation of a national registry. And this same law prevents the ATF from inspecting gun dealers more than once per year. Today, in America, the only federal legislation that limits public carry is the “Gun-Free School Zones Act.”
At the state level, 49 states permit carry, and 30 states don’t even require gun licensing. Since the expiration of the assault weapons ban, these laws apply not only to rifles and handguns, but to assault weapons as well, including those with high-capacity ammunition.
So, what constitutional steps could our leaders take to reduce mass shootings? We first must lower the temperature in Washington. As Rodney King said, years ago:
“Can’t we all get along?”
A Sensible Solution
Let’s define “Constitutional gun control” as restricting the manufacture, sale, purchase, possession, use, or transfer of classes of guns and ammunition. Fair? As such, the 2nd Amendment permits the following changes to the status quo:
Universal background checks
A ban on assault weapons and high-capacity magazines
All new gun owners must obtain a license and pass a rigorous safety course.
Safety features on all guns
A method/mechanism/or device included to trace all purchased guns, including a national database of gun sales and gun owners
A person must reach the age of 21 before he/she may purchase a gun
Mental health and/or red flag initiatives
The repeal of the Lawful Commerce in Arm Act—no immunity for gun manufacturers. Our citizens deserve to hold gun manufacturers to a negligence standard, like any other manufacturer of products, without additional protection from the federal government, consistent with the 7th Amendment to the Constitution.
All these changes are reasonable and, more importantly, constitutional—sadly, that’s exactly why they are unlikely to ever be voted into law.
Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the headlines, realistic fiction that speak truth to power and champion the rights of citizens in our justice system. These novels, dedicated to the social justice movement, are not only enjoyable, they educate, spark discussion and inspire readers to action. For more information, please visit www.markmbello.com. Mark also hosts the Justice Counts podcast with Lean to the Left editor & publisher Bob Gatty, presenting bi-weekly interviews focused on social justice.