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January 9, 2014

"Are there no limits on Second Amendment rights?"

The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center.  After I reprint some excerpts, I will explain why I see more limits on Second Amendment rights than any other right in the Constitution:

In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights. That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment. The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.

The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.” Is that the same thing as saying that government may pass “no law respecting” gun rights?...

The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court....

Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.” Famously, the court has said that one has no right to shout “Fire!” in a crowded theater. Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.

In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment. In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense. It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.

That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.” But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.” It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.

Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights? If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes. Government can “trespass” on private property to put out a fire, for example....

The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment. Up to now, however, the Court does not seem to sense that need. It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level. The court did not go further to explain what it would allow in gun regulation by state and local governments.

It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.

As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right.

January 9, 2014 at 10:13 AM | Permalink

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"As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right."

Of course, sex offender ordinances around the country routinely criminalize the first, fourth, fifth, eighth, ninth, and the fourteenth amendments, in addition to the ex post facto clause and the commerce clause.

But what's a few amendment violations between friends, right?

Posted by: Eric Knight | Jan 9, 2014 1:41:56 PM

Heller provides a list of presumptively constitutional firearm regulations and notes it is not meant to be comprehensive. This is either a "limit" or a recognition that the "freedom" at stake like the "freedom" of speech is not an unlimited right but one in the context of ordered liberty.

The answer is therefore not complicated on some level -- "there are limits." The hard part is determining what they are, which lower courts are now in the process of doing. The 2A involves rights connected to the militia, which is limited in ways that speech, e.g., is not. Minors can buy various books. A law that stops them from buying a gun would probably be upheld.

The principle might be being applied too broadly, but something comparable is being applied to felons. It might not be an "express" right, but voting has been deemed a fundamental one. It has been denied to those who have already served their time in jail. Also, as the author well knows given his concerns, sex offenders also have been particularly burdened here, including regarding who they can associate with. Don't know about 'forever,' but pretty long time.

Posted by: Joe | Jan 9, 2014 2:11:32 PM

I would argue that if we are speaking of state interference as opposed to federal, that the 14th Amendment comes into play. The Second Amendment is applicable to the states, a state can not take your right. Jim Crow laws limited blacks from owning weapons. J Edgar Hoover and his Cointel Program provided automatic weapons to the Klan. There is a lot going on here.

Posted by: Liberty1st | Jan 9, 2014 3:32:21 PM

actually legally the whole question is bull.

Just as local law can't trump state law! and state law can't trump federal law. Not even federal law as opinioned by the USSC can trump CONSTITUTION. Sorry unless there is some type of ambiquity what it says goes.

sorry "shall not infringe" is a polite way of saying "Keep the fuck away" as it would be put in modern English

right up there with "ex post" but of course the shits on the bench had no problem pulling a change to that out of their collective asses with the so-called "civil law" exception that does NOT exist on that document. Same with the so-called "civil law sex crimes law"

the little Nazi wannabees will simply pull whatever they want out of their asses and demand we call it a rose!

But real American's know what liar's they are and they will pay for it EVENTUALLY!

Posted by: rodsmith | Jan 9, 2014 11:05:29 PM

Eric Knight said:

"Of course, sex offender ordinances around the country routinely criminalize the first, fourth, fifth, eighth, ninth, and the fourteenth amendments, in addition to the ex post facto clause and the commerce clause."

rodsmith said:

"the little Nazi wannabees (Supreme Court) will simply pull whatever they want out of their a--es and demand we call it a rose!"

Bingo! Bingo! Bingo!

Posted by: albeed | Jan 10, 2014 9:00:12 AM

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