November 16, 2018

The Second Amendment Does Not Exist in a Vacuum

The Second Amendment to the United States Constitution does not guarantee the right to own arms, unless you happen to be in a well-regulated militia. It would be reasonable and consistent with a strict construction of the Second Amendment to argue that since there are no such militias in 2017, the issue is moot.

Nonetheless, many Americans seem to believe that the Second Amendment guarantees everyone the right to own arms — in any number, of any type, anywhere and at any time. It would be patently absurd to view the amendment as a guarantee of that magnitude. Weapons that are created solely for the purpose of killing human beings have, at most, a very limited place in modern civil society. Do we or do we not want to protect American lives?

We often overlook the fact that the Constitution was written shortly after the American War of Independence, in which well-regulated militias fought for the security of the soon-to-be-born United States of America. Militiamen didn’t have access to the weapons of modern-day warfare. They were authorized to use their muskets and musket balls for military use to protect the security of their nation; i.e., the lives of Americans.

But if we must parse the amendment beyond literal reading, let’s remember that it wasn’t until 2008 that the law of our land expanded the right to own guns beyond militias, to the legal use of handguns for self-protection in the home. The landmark U.S. Supreme Court case, District of Columbia v. Heller, was a very controversial 5-4 decision with powerful dissents. It provides the broadest interpretation of the Second Amendment to date — and it provides absolutely no constitutional protection to automatic or semi-automatic weapons.

There is nothing in the Constitution nor in Supreme Curt jurisprudence that restricts the government from limiting the purchase or ownership of weapons capable of mass slaughter, such as assault weapons and the retrofitting of ostensibly legal weapons to empower them to fire automatically. Shouldn’t our government therefore be enacting policies and laws to limit ownership of such weapons?

In our recent history, assault weapons were banned by federal law, constitutionally, without violating the Second Amendment.  Unfortunately, the ban expired and was not renewed by Congress. But since it is clearly constitutional to prohibit the ownership of certain weapons used for the killing of others, we must acknowledge that said prohibition is lawful; it would not restrict the right to defend yourself in your home with a handgun or to hunt with a hunting rifle.

Have we forgotten the basic premises upon which our nation was conceived, built and exists today? Have we abdicated common sense at the expense of our lives?

The Second Amendment does not exist in a vacuum. Before there was a Constitution, there was a Declaration of Independence, without which the Constitution would have been irrelevant and unnecessary. Our government was created specifically to protect the life, liberty and pursuit of happiness of our citizens.

To date, we have failed miserably in the mission our Founding Fathers entrusted to us. 

The Constitution declares in its preamble that its purpose is to ensure domestic tranquility and promote the general welfare, among other things. Both terms refer to the protection of the lives of our citizens — in common parlance, public safety.  When we allow mass murders of Americans to occur day after day, under the guise of Second Amendment protection, we ignore the most fundamental mandate of the Constitution.

The public safety that America allegedly holds dear, and which our various levels of government purport to be their raison d’être, obviously requires policies and laws that prevent the mass murders of civilians.  And if we don’t believe in anarchy, this requires a prohibition on the ownership of military-style weapons, at the very least.

Simply put, the Second Amendment does not guarantee the right to own arms. It is much more nuanced than that. The current state of the law interprets the amendment to allow limited use of certain weapons, by qualified people, for specific purposes. Anything beyond what is protected may be and should be prohibited.

To date, we have failed miserably in the mission our Founding Fathers entrusted to us. We have not done our best to safeguard American lives. We know what has to be done. 

Karen Kaskey is a Pennsylvania attorney who volunteers at CeaseFirePA.