Here’s a common-sense gun policy for both sides of the debate. Less gun control in rural areas, more gun control in cities. Hunters can go hunting, urbanites can feel marginally surer that when an argument breaks out, fists are thrown and bullets aren’t shot.
What’s wrong with this policy? Well, the Supreme Court may have shot it down in
Was this a sensible decision? The plain text of the Second Amendment seems to support an individual right:
A well regulated Militia, being necessary to the security of a
But the question of individual vs. collective right misses the point. Just because the Second Amendment has a textual command giving individuals the right to bear arms, that does not mean the right is unlimited. Rather, individual right or not, cities should have the flexibility to restrict gun use as a means to reduce murder rates.
To illustrate this point, let’s look at what the First Amendment. If anything, the text of the amendment is even more direct:
Congress shall make no law. . . abridging the freedom of speech. . . .
Despite this clear command, the Supreme Court has been sanctioning laws abridging free speech for 90 years. An individual can be punished for statements likely to incite a crowd to imminent lawless action, for true threats on another’s life. As the saying goes, the First Amendment does not protect a right to yell fire in a crowded theater.
So Supreme Court, follow you own example. Even if an individual has the right to bear arms, that shouldn’t bar cities from passing laws aimed at reducing gun violence.
-Law Dude
2 comments:
Oh yes, there is more litigation to come on this issue.
With free speech, the Supreme Court applies varying levels of scrutiny, based on the nature of speech regulation. Content based regulations receive harsh scrutiny, and are almost never constitutionally permissible. Conversely, so called, "time, place and manner" regulations are subjected to intermediate scrutiny, which is a much easier test to satisfy.
So how will the Court address fire arm issues? There really isn't the same "content based-content neutral" dichotomy when it comes to fire arms.
Or is there? Maybe we can all agree (we don't have much choice), that the 2nd Amendment creates an individual right. Perhaps the "militia" language could be instructive in determining which firearm regulations violate the Amendment.
A Congressional statute barring the possession or ownership of firearms for use in conjunction with a well-regulated militia could be analyzed under a strict scrutiny test. Militias, theoretically, serve to hedge against tyrannical government, much as free speech does.
Meanwhile, a regulation on firearm possession NOT associated with militias could be subjected to some intermediate level of scrutiny. Thus, even though its your individual right to possess a gun, the contours of that right might still be cabined by the language of the 2nd Amendment.
Or who knows? There just isn't any case law on this issue. Whomever is elected President will get to pick two justices who will go a long way towards defining this area of the law.
You are making the same mistake many make when you equate gun ownership with hunting. The Second Amendment is not about hunting, target shooting or gun collecting. It is about having the means to defend one’s self, family and home against criminals. . There are 80,000,000 gun owners in this country and only about 15,000,000 registered hunters. To put it another way 80% of gun owners DO NOT hunt. People own guns primarily for self-defense and those that live in large cities should have the same ability as those who live in rural areas. Democratic candidates politicians make this mistake this all the time, when they say "We don’t want to take sportsmen’s gun away.” This is a code phrase that means that they do in fact want to take other guns, like semi-automatic rifles and handguns, away. Gun owners know this, and that’s why Democrats continually have trouble at the polls because of their record on the Right to Keep and Bear Arms. The idea of civil rights being predicated on where a person lives in the US is a very bad idea. Unless of course it is acceptable to you if certain cities and states abortion. Is it?
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