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 ofDistrict 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 and restrictions.
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 believeany 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.
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