Letter: Second Amendment does not allow unrestricted rights

Posted 9/19/19

The notion that the Second Amendment provides unrestricted rights to assault weapons is demonstrably false. Recent letters regurgitating the NRA’s talking points and citing constitutional …

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Letter: Second Amendment does not allow unrestricted rights

Posted

The notion that the Second Amendment provides unrestricted rights to assault weapons is demonstrably false. Recent letters regurgitating the NRA’s talking points and citing constitutional language won’t change that.

Assault weapon bans, restrictions on “open carry,” strict background checks and other limits are undoubtedly allowed under the United States Constitution.

First of all, there are no rights provided by the Bill of Rights — nor the rest of the Constitution — that are not subject to interpretation. This has been true since Marbury v. Madison, the 1803 United States Supreme Court case that established “judicial review.”

Then Chief Justice John Marshall stated, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

This is well known and accepted by most Americans. The right to free speech does not allow a person to yell “fire” in a crowded movie theater. The “right of the people peacefully to assemble” does not prevent protesters from being kept at a distance or even forced within an enclosure. The Fourth Amendment right to “be secure in their persons, houses, papers and effects” does not prevent numerous methods of surveillance and seizure by the police.

Second, while everything in the Bill of Rights is subject to interpretation, only the Second Amendment specifically mentions regulation. The phrase, “a well-regulated militia,” clearly acknowledges that guns should be regulated. Even in the early days of our republic, in the time of muskets and pistols, gun regulation was necessary and was included in the Constitution.

Third, this is all clear from Justice Scalia’s decision in the Heller case. As noted in a recent letter to the editor, the 2008 Heller decision is important. Readers will find the following quote: “like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Fourth, and perhaps most importantly, when the Supreme Court chooses not to review a law passed by a state, it suggests the state law is valid. Since the Heller decision, the Supreme Court has now refused to hear appeals of gun safety measures, including multiple bans on assault weapons, high-capacity magazines and other gun components, more than 150 times. This includes assault weapon bans among the seven states that have passed them — California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey and New York.

Finally, let’s not forget that this entire country had an assault weapons ban in place for 10 years, passed by Congress in 1994. The ban expired in 2004 due to a legislatively lazy compromise that we now pay for dearly. 

If we are to have a meaningful debate about gun safety in this country, let’s at least honestly acknowledge that the Constitution allows significant restrictions.

Patrick Barry
Bristol

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