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The Second Amendment allows for gun control, or at least, according to Presidential candidate Eric Swalwell. During an interview on CNN’s “State Of the Union,” the Democratic Congressman attempted to frame himself and his Party as defenders of gun rights by saying “…the greatest threat to the Second Amendment is doing nothing….” He went on to say “…just like free speech…you can't shout fire in a theater or lie about the products you are selling. You can't own a bazooka, you can't own a tank, you can't own rocket-propelled grenades.“ Swalwell essentially rebranded the classic, and Constitutionally-faulted, argument for gun control. By doing so, he blunted radical demands to strip away the Second Amendment rights of Americans and made gun control sound more palatable to those on the fence, but he did nothing to appeal to hardened gun supporters who fear any and all restrictions on gun rights. He also excluded more balanced solutions by limiting his thinking. By simultaneously recognizing Second Amendment rights as guaranteed civil liberties and assigning arbitrary limits on those rights, Congressman Eric Swalwell closed his mind and the minds of his supporters to an open debate on how Second Amendment rights should be limited. It is true that the Second Amendment does not afford US citizens an absolute right to keep and bear arms. What the Second Amendment says is “…the right of the people to keep and bear Arms, shall not be infringed.” Quite frankly, the Second Amendment cannot be logically interpreted to mean Americans have a right to own a certain arbitrary class of arms, but not a right to own other arbitrary classes of arms. The Constitution says laws cannot infringe on the rights of individuals. What the Second Amendment does not do is define exactly what “the right of the people to keep and bear Arms” is. For this reason, gun rights are not absolute, but restrictions on gun rights, like all civil liberties, cannot be arbitrary nor can they nullify someone’s rights when put into practice.
In 2008, the Supreme Court in District of Columbia v. Heller reaffirmed an individual's right to bear arms under the Second Amendment. In 2010, the Supreme Court then reaffirmed the right to keep and bear arms in McDonald v. City of Chicago, which definitively barred State governments, in addition to the Federal government, from infringing on the rights of citizens. What the Court did not do was establish there is an absolute right to keep and bear arms. Like many of our constitutionally guaranteed rights, this means there are limits to exercising this freedom. For example, laws can be created to require the registration of firearms or ensure gun owners take responsibility for their weapons. These two cases have showed that laws requiring the use of devices like trigger locks and gun safes are not inherently unconstitutional. In the 1939 case United States v. Miller, the Supreme Court also established the Second Amendment does not protect individuals who use weapons to commit crimes or represent a threat to public safety. As such, there are reasonable restrictions that can be placed on gun rights, but those restrictions have nothing to do with what kinds of weapon a person owns. Second Amendment rights cannot be infringed upon by the laws that prevent eligible citizens from owning and bearing arms. Under the Fourteenth Amendment, the Due Process Clause says an individual's rights, whether explicitly mentioned in the Constitution or not, cannot be violated without that individual having been prosecuted in a court of Law. Keeping guns, specifically highly lethal automatic rifles and easily concealed handguns, out of the hands of reckless individuals is the key goal for anti-gun activists. Unfortunately, many of these groups pursue a radical policy course that would require the elimination of the Second Amendment or truncation of Second Amendment Rights. Direct and indirect attacks against the Second Amendment, such as taxes on ammunition, raise serious concerns. The Swalwell approach to gun control only reinforces the alleged need to limit people’s rights. To boot, Republican President Donald Trump has embraced the gun control agenda, thus there is growing bipartisan support for unconstitutional restrictions on the civil liberties of the American People. Democrats and Republicans need to pursue a more balanced agenda, which should include measures that address the following areas: 1. The Supreme Court’s 2016 decision in Shew v. Malloy to overlook a Connecticut ban on certain semi-automatic weapons and large magazines represents a failure to protect Civil Liberties. One major purpose of the Second Amendment is to protect people from government and military oppression. As the military has automatic weapons and the Second Amendment was created, in large part, to counterbalance the might of the military, the Second Amendment guarantees citizens can own these weapons. Instead of banning semi-automatic weapons, “bump stocks,” and large magazines, i.e. violating people’s civil liberties, the focus should be on restricting dangerous people from buying such weapons via higher level permitting for more dangerous weapons. 2. Embrace more extensive background checks for automatic weapons. 3. Embrace wait periods on sales of shotguns, pistols, and automatic guns, which can be used in a heated moment to cause mass causalities. 4. Embrace temporary Gun Violence Restraining Order, or GVRO, to prevent those with mental health issues from accessing guns that might be used to act out any violent and suicidal impulses or plans. 5. Identify when the government has a compelling state interest to restrict an individual’s Second Amendment rights. 6. Obtain subsidies for gun safety training as part of a requirement for carrying permits, which would encourage safe handling of guns. 7. Gun owners must handle their guns responsibility. When they are not using their guns, they need to store them in a safe and secure means. As such, public policy should clarify and increase the legal penalties for negligent gun owners whose weapons are lost or stolen and never reported lost or stolen. 8. Craft a streamlined process that allows individuals, who have had their Second Amendment rights restricted due to criminal records and mental health issues, to restore their Constitutionally guaranteed rights. 9. Restore the full Second Amendment Rights of law-abiding citizens who are 18 and over by allowing them to purchase handguns and shotguns where they are prohibited from doing so. 10. Obtain subsidies for permitting to alleviate the financial constraints that impede the Second Amendment Rights of the poor. 11. Eliminate taxes on gun or ammunition sales.
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April 2020
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