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Calling for Reasonable Discussion About Gun Regulation


Necessary for the security of a free state?

There’s a lot of crazy talk accompanied with our national discussion about gun control legislation and the recent mass killings that have ushered in the debate.   Some people on the left want to think the Second Amendment means nothing today.  Since we believe in the rule of law, I recommend we tread carefully since we rely on the Constitution to protect many of our cherished civil liberties.  But many more right wingers are shouting at the roof tops that ‘Obama is coming for your guns, comparing him to Adolf Hitler, or Saddam Hussein, and calling for his impeachment.  Many of them believe the Second Amendment is an unlimited protection of any guns they want to own, free from any pesky background checks, waiting periods or other regulations.

In between the knee-jerk reactions from both sides, there’s got to be some sense we can make out of this conversation about guns in America.  Clearly the fact that we have an enormous number of guns by comparison to other countries and an equally disturbing level of violence should cause us to pause and think about our obsession with guns in this country.  What is government’s role in that conversation?  Good question, but first there are some basic points about the Second Amendment we’ll have to resolve before proceeding any further.

There is a great deal of misconception and even disinformation about what the Second Amendment really means.  Both liberals and conservatives are guilty. In fact most Americans have little grasp of how the amendment came to pass and how it has evolved over the past 220+ years.

How do I know anything about it?  It’s worth mentioning here that my father, constitutional law professor Thomas McAffee, holds the distinction of having had his North Carolina Law Review article cited by the majority opinion of the D.C. Circuit Court (See page 20 of the decision) in the famous gun case Heller v District of Columbia.  I enjoy a close relationship with my father, and much of our time spent together involves discussions of these matters.

For those of you who don’t know, the Heller case is the first time in American history that the right to own a firearm was recognized as an individual right by our Supreme Court.  Remarkably, the decision was made in 2008, nearly two and a half centuries after the inception of this nation.  Think about that one for a second.  We’ve had gun bans throughout the country for over 200 years, and now the Supreme Court decides to chime in?

Now think about this:  When the Second Amendment was ratified as law with the Bill of Rights in 1789, the “right to keep and bear arms shall not be infringed” clause only restrained the federal government from outlawing guns.  Most of the Bill of Rights’ amendments begin with “Congress shall pass no law…” and didn’t apply to state governments until much later.

Gun enthusiasts are often fundamentalists when it comes to their constitutionally protected right to own guns.  They will evoke the founding fathers as their moral and legal authorities like quoting scripture, yet most of these gun lovers don’t even understand this simple concept that the founding fathers never did anything to prevent states from banning the ownership and/or possession of firearms in any way whatsoever.  It was a states’ rights issue.  Now correct me if I’m wrong, but isn’t the states’ rights mantra a cherished conservative cornerstone?  How many conservatives will want to wave the states’ rights flag to defend Illinois’ ban on concealed carry permits?  I won’t hold my breath.

Yes, most of these amateur constitutional enthusiasts couldn’t even tell you why the Second Amendment might now apply to both state and federal governments.  They would have no clue that the Fourteenth Amendment incorporated the Bill of Rights as a check against state powers, and didn’t officially do so as far as the 2nd Amendment until 2010.  Of course there are enough people on the left who don’t realize this as well.  The point is if you are going to bring up the Constitution, the founding fathers, or the Second Amendment with such passion, make sure you know what you are talking about.

Let’s get down to the nuts and bolts of the Second Amendment, and I think this will be informative for both people on the left and the right.

Preserving citizen militias was part of the fundamental safeguards laid down to protect the freedoms of a government by the people.

The Anti-Federalists raised concerns that after the revolutionary war, citizen militias would be disbanded and replaced by politicized standing armies.  The founding fathers, having declared independence from a tyrannical government, were certainly weary of this and wanted to preserve one of the vital institution that allowed them to obtain their new found independence – citizen militias.  The Second Amendment has this element preserved in its language: “A well regulated militia being necessary to the security of a free state, the right to keep and bear arms shall not be infringed.”

At the time, it is well established that the militia was every able-bodied male, their arms were the guns common to nearly every house hold.  Therefore one way to disband a militia without overtly doing so would be to ban ownership of guns.  Thus protecting personal gun ownership would go far to preserve citizen militias.

Let’s be clear, the Second Amendment must be read to protect the right of individuals to own the “common” weapon of the day.  Despite the word “militia” carries with some people, militias did not use the military weapons of the day… even Justice Scalia and the conservative majority in Heller agreed with 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:  For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

-From majority opinion written by Justice Scalia in DISTRICT OF COLUMBIA v. HELLER 478 F. 3d 370

Without question, this means that outright prohibition on common handgun and rifle ownership is not going to pass Constitutional muster.  That being said, assault weapons and high capacity magazines are not likely going to be found protected by the Second Amendment – once again, Justice Scalia’s opinion indicates as much.  Local journalist Steve Sebelius recently suggested some of these semi-automatic rifles like the AR-15 are common enough, and thus ought to be protected.  I dissent, and suggest that while there are many, by no means are they the common household guns of today.  In fact I think it’s pretty uncommon for someone to have one of these weapons, and thus I do not believe they qualify as a protected arm or fit within the spirit of the Second Amendment.  Further, the founders could not have anticipated the level of danger these weapons pose to society when they were using muskets and maybe bolt action rifles.

Let’s look at some data to back up that point.  According to a November 2012 Congressional Research Service report found that, as of 2009, there were approximately 310 million firearms in the United States: “114 million handguns, 110 million rifles, and 86 million shotguns.”  Estimates for military assault weapons in the United States range from 2-3 million.  That’s up from 1.5 million in 1994 when the original assault weapons ban was instituted.  Because it was allowed to expire, the number has probably doubled.  We need to prevent this from growing further.

Self preservation is another element of protection in the Second Amendment

It’s worth noting for the purposes of our discussion that preserving the militia was not the only aim in the Second Amendment’s inclusion into the Bill of Rights.  The other goes back to the English Bill of Rights and Sir William Blackstone’s commentaries of English Law, both which inspired much of what we read in our own Constitution.  This language may sound familiar to you:

“And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence. [Sic]“

-Sir William Blackstone’s Commentaries on English Law 1765-1769

We see language in this paragraph nearly identical to that in the First and Second Amendments in our own Bill of Rights.  If you read further, you’ll find the Fourth Amendment’s language almost verbatim.  The point we can take away from this is the authors of the Second Amendment felt that self preservation was a fundamental right…  something worth committing to writing as a check against government, not just some hyperbole written in a treatise somewhere.  The legal right of self preservation is something our law and moral ethics still hold to this day.  Gun ownership was seen as fundamental to this end when the Second Amendment was written, and it is the law of the land.

Now some people may question whether guns create more or less safety, or even whether someone is likely to preserve their own life by owning a gun when they are confronted with most dangerous situations.  While valid questions, it seems clear that the Constitution, which is the supreme law of the land, is quite clear in granting this protection.  Folks on the left would be better off to begin any conversation about gun control by conceding this point and starting off on honest and solid grounds.  That allows us to get down to the point of discussing dangerous weapons, and reasonable regulations concerning the hefty responsibility of gun ownership.

The government needs to play a role in curbing gun violence in this country.  Reducing the number of guns available, especially these military weapons and high capacity magazines, should be part of that.  Background checks, storage requirements, training requisites and even per household gun capacities should be on the table for discussion.  Clearly, more guns is not the answer.  We have both more guns and more violence than any modern western democracy on the planet.  Our lax approach to gun ownership has lead to a flooding of the black market with guns for gangs and criminals, not only in the United States, but also abroad.

A final point…  while a background check or an assault weapons ban passed a year ago may not have stopped either the Colorado or Newtown incidents, if we would have kept the 1994 one in place, it may have prevented both the Colorado and Newton shooters from ever obtaining a military assault weapon.  Since the ban was repealed, sales on assault weapons have skyrocketed.  We are getting gun crazy.  Slowing that down would go a long way to reducing gun violence in America as the data from the assault weapons ban era indicates.

About Justin McAffee:
Justin is the publisher The Nevada View, which has earned the recognition in the Washington Post’s “Best State-Based Political Blogs,” as well as being awarded the “Most Valuable Blogger Award” by the local CBS affiliate in 2011. Follow him on Twitter @McAffee


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