December 10, 2018 | ° F

MAENNER: Gun restrictions are not necessarily unconstitutional


Opinions Column: Maenner's Musings


HunterMaenner

As the issue of gun control has continued to hold a prominent position in the national political discourse following last month’s school shooting at Marjory Stoneman Douglas High School in Parkland, Florida, attempts at reform have been met with immense backlash from gun advocates who consider any further attempt at restricting access to guns to be antithetical to the Second Amendment. The most high-profile example of this comes from the National Rifle Association (NRA), who is filing a lawsuit against a new Florida law, which raises the minimum age to purchase a weapon from 18 to 21, claiming that it infringes on the Second and Fourteenth Amendment rights of those who are 18 to 20. Yet, the popular belief among gun enthusiasts that the Second Amendment prescribes an individual the inalienable right to possess a firearm is both an oversimplification and an inherent misunderstanding in terms of the amendment’s history and its interpretation up until today. 

For starters, the uncertainty of the true meaning of the Second Amendment has long made it a divisive issue that the Supreme Court has largely exempted itself from ruling on. The main reason being that the way in which the founders worded the amendment makes it sound more like a compromise than an unequivocal declaration. Its disjointed nature has created two separate camps within the American political sphere as to how the Second Amendment should be interpreted, with some subscribing to the “individual rights theory” and others accepting the “collective rights theory.” The difference between these two theories stems from where one places the emphasis on their interpretation of the amendment. For collective rights theorists, the focus lies on the prefatory clause: “A well regulated militia, being necessary to the security of a free state." Individual rights theorists consider that nothing more than a statement made in the context of a different time, instead believing that the latter portion of the amendment, which states that “the right of the people to keep and bear arms, shall not be infringed,” is the part we should be concerned with today. 

Either way you look at it, though, misinformation has played a large part in the failure of people to grasp the complexities of how the Second Amendment is interpreted. An example of the deleterious effects of a widely accepted false narrative can be found in a commonly quoted line among gun advocates by influential founder George Mason — that just so happened to be repeated by NRA spokeswoman Dana Loesch during the CNN town hall following the Stoneman Douglas shooting — which is “I ask, sir, what is the militia? It is the whole (of the) people ...” For gun advocates, this quote shoots down the validity of any reservations held against the Second Amendment emanating from its prefatory clause, but it also conveniently neglects the whole point Mason was making when he said it. While the quote itself is not incorrect, it is taken out of context, as the following line uttered by Mason is, “But I cannot say who will be the militia of the future day,” which clearly implies an open-endedness to the amendment’s interpretation. 

But, it must also be said that gun control advocates cannot ignore the precedents set by the Supreme Court on this issue. Now, the Second Amendment does not read as if it bestows an unmitigated right to bear arms to the populace. Rather, its purpose was to ensure the existence of state-run — and mind you well-regulated —  militias for the purpose of defending the young republic. Even so, the Supreme Court did rule in the landmark 2008 case District of Columbia v. Heller that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In effect, the right of an individual to bear arms was not granted by the likes of James Madison nor Thomas Jefferson. Instead, it is the likes of former Justice Antonin Scalia and Justice John Roberts who serve as the fathers of the amendment’s current legal interpretation. 

In all, the complex history of the Second Amendment serves as the basis for many controversial legal battles to come — including the NRA’s current challenge regarding age restrictions on the right of an adult to purchase a weapon. Though the belief that an individual’s right to possess a firearm is inalienable will persist, the history of the Supreme Court’s interpretation of the Bill of Rights illustrates that there is room for limitations on constitutional rights where the government’s interest is substantial. And much like there is a substantial government interest in preventing people from yelling fire in a movie theater, there also exists one in keeping innocent children free from gun violence.       

Hunter Maenner is a School of Arts and Sciences junior majoring in criminal justice and political science. His column, "Maenner's Musings," runs on alternate Mondays.

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Hunter Maenner

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