Remember the Constitution in any gun discussion
Our nation is grieving.
In the wake of a string of tragedies in which deranged persons used firearms to maim and kill innocent bystanders, many Americans are — quite understandably — calling for a renewed public conversation about whether state and federal laws should restrict the types and quantity of guns and ammunition that citizens may lawfully possess.
While some commentators continue to say that it is not an appropriate time for such a conversation, I disagree; this is an issue of vital importance, and as a self-governing society we should never shy away from considering whether our laws might be improved.
That said, as we engage in this discussion it is vital to understand the constitutional limits on laws restricting the possession and use of firearms. After all, it makes no sense for people to call for Congress to pass a law that Congress has no power to pass, and the courts have determined that Congress does face some limits in this regard.
For example, in 1995 the U.S. Supreme Court held that Congress’s power to regulate interstate commerce does not give it authority to prohibit the possession of firearms in a school zone.
This means that some of the laws that people may wish to see the federal government enact are simply beyond its power.
State governments have broader authority to fashion laws governing citizens’ behavior, but there are constitutional limits at this level as well.
The U.S. Supreme Court has held that the Second Amendment means, at a minimum, that citizens have a right to possess a functioning handgun within their own home.
As a result, no government body may pass an outright ban on citizens’ ownership of handguns.
Federal courts are currently assessing whether the Second Amendment’s protections for gun ownership extend beyond one’s home or to other types of firearms.
But even beyond the protections afforded by the Second Amendment, state constitutions typically make a citizen’s right to own guns more explicit.
Almost every state constitution guarantees that individual citizens have a right to bear arms in self-defense. Many states, including Missouri, go even further, establishing that citizens have a right to bear arms in order to defend themselves, their family, their home, and their property, and some states also protect the use of guns for hunting and recreational uses.
Idaho’s constitution explicitly forbids any law that would permit the confiscation of firearms unless the specific gun to be seized was used in the commission of a felony.
Some may be tempted to say that these constitutional protections for gun possession should be set aside because they are no longer relevant or needed.
This is an idea that can be part of the political conversation — in fact, both the United States Constitution and our state constitution provide for an amendment process so that citizens can make adjustments when they believe it wise to do so.
But our constitution protects certain rights because the framers knew that in troubled times a large portion of the population might find it expedient to pass laws that would limit or destroy those rights. Requiring a constitutional amendment before laws may infringe on these rights creates time for sober reflection as the population determines whether the proposed changes are indeed prudent.
Thus, advocates for increased gun control may, indeed, work to amend these constitutional provisions.
But until such amendments take place, any new legal limits on gun ownership and possession must not deny citizens the right to keep and bear arms as necessary to defend themselves, their homes, and their property.
Dave Roland, of St. Louis, is director of litigation of the Freedom Center of Missouri, a limited government advocacy organization.
George Harris
Kansas City
5 months agoI haven’t heard of anyone advocating amending the 2nd Amendment. But the Supreme Court left open whether there are reasonable restrictions on owning arms. Those limits need to be explored and developed. No one thinks it’s reasonable for individuals to own nuclear arms. Few think it’s reasonable for individuals to own weapons of war. Most think it’s reasonable to limit gun ownership to people who are not dangerous to self or others. It’s time for responsible legislators to pursue these restrictions and then test the constitutionality of the restrictions in the court. A restriction isn’t unconstitutional until the courts say it is.
Mark Hastert
5 months agoPerhaps the strict “originalists” constitution advocates would agree that the right to bear arms is, therefore, limited to the arms known to the signers i.e flintlocks? They always argue that it’s not a “living” document, eh?
Yanwen Xia
Overland Park
5 months agoThe “right to possess a functioning handgun within their own home.”
We are not talking about a simple handgun or defending one’s home. We are talking of semi-automatic assault weapon, shooting in theatre, school, temple, anywhere but home.
Something has to be done to restrict this gun-obssessed violent culture.
Christmas means peace for all. On this Christmas day, for the victims of gun violence, there is no better Christmas gift than the passage of a strict gun control law.