Sunday , April 01, 2018 - 4:00 AM3 comments
The right of an individual to bear arms is just 10 years old. It originated in a 2008 Supreme Court ruling, District of Columbia v. Heller.
DC passed a law that can only be classified as a classic Catch-22: you can’t have unregistered weapons and you can’t register handguns. The handgun ban and a law requiring trigger locks on all guns, unless being used properly, were both found to violate the Second Amendment in Heller.
Although the Second Amendment may appear impenetrable, it barely prevailed. The vote was 5-4, with Justice John Paul Stevens drafting the dissent. Even in the prevailing opinion, Justice Antonin Scalia wrote, “Of course the right [to bear arms] was not unlimited, just as the First Amendment’s right of free speech was not.”
In a New York Times op-ed piece last week, Stevens suggested we should repeal the Second Amendment.
Stevens is 97 years old and retired from the bench. In a way, I can see why he urged repeal. It was a masterful plea by a sage legal mind to raise the stakes in the gun control debate. Stevens knows that with broad popular support, gun control legislation could easily pass constitutional muster, even with the current Supreme Court. He was supplying a counterpoint to the National Rifle Association, which uses the Heller case to rally support.
Stevens slanted his argument by suggesting that the Second Amendment prevented lawmakers from opening up gun manufacturers to liability. He wrote, “It [Second Amendment repeal] would eliminate the only legal rule that protects sellers of firearms in the United States.” That is simply wrong. The Second Amendment protects the right to bear arms, not liability from lawsuits for those who manufacture and sell firearms. In fact, the protection on tort liability comes from Congress and the law it passed, the Protection of Lawful Commerce in Arms Act. Nothing in the Constitution would prevent holding the manufacturer or seller more responsible for firearm violence.
By raising the idea of repeal, though, Stevens brought the Constitution to the front of the argument. He would like us to forcefully ask whose rights we want protected.
Whether we like to acknowledge it or not, the fundamental rights we espouse in the Constitution are a tightrope, balancing rights on one hand and restrictions on the other. And this brings me to a more interesting constitutional question only obliquely raised by Stevens.
I agree with Stevens. I believe we ought to consider changing the Constitution to reflect changing times, but that doesn't include repealing the fundamental freedoms within the Bill of Rights. We’ve spent centuries of jurisprudence refining and improving our laws, and there is ample room under the Second Amendment to make us safer from gun violence without sacrificing individual liberty.
We have a long history with the Bill of Rights. We know that its liberties are protected, while simultaneously restricted. When we pass laws, the courts keep them from ranging too far from principles upon which our freedom rests. It is a system that works, and we have historical evidence to prove it.
So instead of repeal, maybe we should be asking how we could amend the Constitution to add more rights. How would the Obamacare debate change if everyone had a constitutional right to health care? Maybe a constitutional amendment could force cooperation and creativity, because shouldn't we put as much energy into our collective health as we do our collective desire to be armed? How would our housing laws change if everyone had a constitutional right to food, shelter, and clothing? What if there was a constitutional right to an education? Before you think I’ve gone off the deep end, almost all countries which have drafted constitutions in the last 20 years included a constitutional right to health care. As of 2011, almost 40 percent of the countries in the United Nations had constitutional protections for health care.
No, we shouldn’t be repealing the Second Amendment. I want my brother to have the right to have his impressive but modest collection of firearms. But perhaps we ought to give some thought about what a more civilized, evolved society should look like; a society where the right to bear arms is as important as the right to receive medical care when someone gets cancer or, heaven forbid, is on the wrong end of a gun.
E. Kent Winward is an Ogden attorney. Twitter: @KentWinward.
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