By Tim Andrews, S.C.O.P.E. At-Large Director
Do we really have a Second Amendment? Good question and I’m amazed I’ve never read or heard anyone ask that fundamental question. I even googled the question, and the only thing that came up was the text of the Second Amendment and some academic pro and con debates.
The United States Constitution is the premier law of the land. The Bill of Rights is the first ten amendments to the constitution. The right to keep and bear arms is number two, and the common thread of the first ten amendments is that they all pertain to the rights of the individual. We also have two Supreme Court rulings supporting an individual’s right, at least as it exists in the home.
Yet, despite this, we have literally thousands of laws on the books, both on the federal level and state levels, restricting an individual’s right, and in many cases outright banning an individual’s right to possess certain firearms, including firearm accessories. Many will argue the government has the power to regulate issues pertaining to the Bill of Rights; the “you can’t yell fire in a crowded theater” argument. I would agree to give the government the power to regulate for the common good. The question is, where’s the line? When does regulation become a violation of our Second Amendment? What regulation is acceptable?
To answer that question, I would argue that regulation begins and ends with criminals and criminal use of firearms and I’d start with someone who’s convicted of a violent felony. If you are convicted of a violent criminal offense you should forfeit your right to possess a firearm. However, it’s also important that Fifth Amendment due process rights are protected so individuals are not unduly prosecuted. I would also argue that any law-abiding citizen who possessed or purchased a firearm legally cannot be prosecuted retroactively.
We can all agree the very nature of criminal behavior is that they don’t obey laws; whether it’s jaywalking or murder, criminals are not deterred by laws. The trouble is, many of the thousands of gun laws on the books are not targeted at criminals or criminal use of firearms; they’re clearly aimed at law-abiding citizens.
A few examples are, gun-free zones, which criminals laugh at. They more accurately should be referred to as killing zones. What better place to commit murder than a location where the criminal knows no one else is armed? Then there are bans on firearms, magazines or other accessories. Again, criminals will get what they want. Only law abiding citizens, the ones whose rights are supposedly protected by the Second Amendment are impacted. These are only a small sample as there are many other laws, like them, that not only violate Second Amendment rights but they also violate our right to protect ourselves and our families. Regulation of the Second Amendment should focus on criminals not law-abiding citizens.
Gun control has always been about people control going back to the black codes that were intended to control freed slaves following the civil war. Then, there was the National Firearms Act of 1934 that, among other things, effectively banned automatic firearms. This was the beginning of the slippery slope when bans became acceptable. The cliche “slippery slope” aptly applies to gun control, just witness how acceptable bans have become with so many.
So again, I ask, do we really have a Second Amendment? With the influx of red flag laws, do we have a Fifth Amendment which is supposed to guarantee due process rights?
Given the magnitude of the Bill of Rights, what many constitutional scholars refer to as the supreme law of the land, it’s troubling how easy it is for legislatures to circumvent them. Just look at the restrictions and bans we’ve experienced in New York. And when we have sought relief through the courts, we’ve been met by activists’ courts that distort the intentions of the founders or the courts viewed the constitution as a malleable document that doesn’t really mean what it says.
Later this year the U.S. Supreme Court is expected to rule on the city of New York pistol license law. It could be a landmark decision for gun rights, but the wild card is Chief Justice Roberts, so time will tell. The silver lining is President Trump, who is changing the federal courts with a record number of appointments. If the president is reelected and a GOP majority is reelected in the Senate, he could change the courts for generations. That may very well be the Second Amendments' last hope.
Until then, it still begs the question, do we really have a Second Amendment?