With the president’s announcement of gun control proposals, the divisive battle has re-emerged even when the nation tries to comprehend the horrors of Sandy Hook Elementary.
And while legislative and executive proposals and the threats to block these proposals are filling the airways, it is important to understand two pivotal legal cases surrounding the Second Amendment: one from the nation’s capital and the other from the president’s hometown, Chicago, a city that saw 500 homicides in 2012.
Inevitably, both cases will be used by each side to support their cause.
In the case of District of Columbia vs. Heller, Justice Antonin Scalia, writing for the Supreme Court’s majority and a justice held in high regard by the right, ruled that banning handguns in the home violated the Second Amendment.
The district’s ordinances held that unregistered firearms were a crime, while prohibiting the registration of handguns. In addition, lawfully owned firearms, such as registered long guns, had to be kept “unloaded and dissembled or bound by a trigger lock” if kept in a home.
Scalia mentioned the idea that perhaps “arms” should be considered those instruments used at the time the amendment was adopted (namely, a musket), but summarily discounted it by noting the First Amendment protects modern forms of communication and the Fourth Amendment applies to modern forms of search and seizure.
As the predecessor of the Second Amendment, Scalia also notes that the British monarchs William and Mary assured the right “that the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.”
In striking down the D.C. prohibition, Scalia noted that the “inherent right to self-defense has been central to the Second Amendment right.” While handguns were “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense, Scalia acknowledged that this right “was not unlimited” and “we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation” (emphasis in original).
In fact, Scalia makes a very clear delineation that Second Amendment rights are not absolute: “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” and that the “limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
In fact, in the D.C. case and the Chicago case that ensured the Second Amendment against prohibitions by cities and states, Scalia held that:
“nothing in our opinion should 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.” (emphasis added)
If both sides of this politically divisive debate can find some common ground to deal with the mentally ill seeking to purchase firearms and acknowledging that semi-automatic weapons with high-capacity clips aren’t the preferred instruments for hunters, the Second Amendment can still protect a fundamental freedom inherent in our nation’s history, while perhaps addressing the root causes of events like Sandy Hook and Aurora.
But like so many other divisive issues our nation is confronting nowadays, both sides of this debate have no real interest seeking common ground — other than selectively using these cases to justify their position.