Op-ed: A Legal Perspective on the Gun Control Debate
By Tom Lahey, Class of 2016
It is a political myth that conservatives in America have a monopoly on interpreting the “intent” of the nation’s founders as it relates to the text of the Second Amendment. It is true that conservatives have an almost reverent affection for the Founding Fathers and believe their writing of the Constitution to be an infallible inspiration of natural law and the rights of man. It’s time for the left to challenge that notion.
As a law student, I am confronted with being put in the challenging position of having to argue a position in a wholly objective manner. Given the recent shooting at Marjory Stoneman Douglas High School and countless other instances where a military-grade weapon of war has been used on the American people by their fellow citizen, and oftentimes, their neighbor, it’s been more difficult than usual to argue for stricter gun-control without letting my emotions get the better of me. Recently, in my constitutional law class, I’ve found the answer.
For those unfamiliar, District of Columbia v. Heller, 554 U.S. 570 (2008) is a case that made its way to the Supreme Court following a police officer’s challenge of D.C.’s law against the ownership and possession of handguns within its jurisdiction. The majority, led by Justice Antonin Scalia, cited the country’s Founding Fathers’ intent that there be a “citizen’s militia” that is necessary not just for the “security of a free State,” as expressed in the Second Amendment, but as necessary for self-defence. The self-defense argument took a strange turn when Justice Scalia suggested that not only was this for self-defense of the individual person, but also of the public, for if the newly founded government should turn on its standing army (of which many founders were fearful would lead to tyranny) then it is the duty of the citizen to resist with his arms. Such logic, as referenced by Scalia in Heller, was imported to the colonies by the English from a declaration from 1689 wherein William and Mary declared that Protestants in England would never be disarmed.
My question, then, is why can England, 329 years after the Declaration of Right, find in itself the strength and courage to change its gun laws so that it is virtually impossible for a civilian to own an AR-15 or even a handgun, but here in the United States, 230 years after the final ratification of our Constitution, we cannot? I believe this is because we are interpreting the Constitution incorrectly and pretending that its text cannot be changed.
The entire purpose of the Second Amendment was to maintain a “well-regulated militia.” The phrase “self-defense” does not appear anywhere in the text of the Amendment. State constitutions that predated the U.S. Constitution included a reference to self-defense, but did so explicitly, making its omission in the federal Constitution conspicuous. Congress was authorized to organize, arm, discipline, and provide for the calling forth of “the Militia” (U.S. Cons., Art. I, §8, cls. 12-16). Surely the word “militia” in Art. I, found again in the Second Amendment, cannot mean different things. The Second Amendment, therefore, was meant to describe the duty and right to have arms available and ready for military service, “being necessary to the security of a free State,” not unregulated private ownership.
To close, the right does not have a monopoly on quoting or referencing the Constitution or the Founding Fathers. As liberals and progressives, we should feel comfortable debating with our conservative friends on the true meaning of the Second Amendment, and never shy away from honest, intellectual debates on this topic. However, a little emotion won’t hurt from time to time.
23 thoughts on “Op-ed: A Legal Perspective on the Gun Control Debate”
Interesting that you have the “challenge” to argue objectively. You failed that challenge.
“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a
republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally,
even if these are successful in the first instance, enable the people to resist and triumph over them.”
Joseph Story, Commentaries on the Constitution of the United States, Volume III Chapter XLIV: Amendments to the Constitution, p. 746, paragraph 1890
Joseph Story (September 18, 1779 – September 10, 1845) was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered for his opinions in Martin v. Hunter’s Lessee and The Amistad case, and especially for his magisterial Commentaries on the Constitution of the United States, first published in 1833. Dominating the field in the 19th century, this work is a cornerstone of early American jurisprudence.
I might add that Joseph Story was no ‘conservative’, he was, er, ‘progressively’ inclined. But, it appears, that he was at least honest.
Aside from Dershowitz and several others, there are none left. No pun intended.
This treatise relies on the flawed premise that our rights are granted by men, while the core First Principle of this nation is that they are endowed by an authority higher than men (nature and nature’s god), hence men can have no legitimate mantle of authority to deny them.
As such, any ‘progressive’ arguments that dilute, attenuate or disregard those rights cannot prevail, ipso facto.
Sorry, ‘professor’. The central premise of ‘progressives’ that there is no line the government cannot cross if the ‘enlightened class’ deems it necessary is facially profane and fatal to individual liberty.
New Yorks 1,000,000 new illegal gun owners..
REFUSED TO REGISTER THEIR MEDIA LABELED ASSAULT WEAPONS….
One million plus new felons, all armed with scary, high capacity, media labeled assault weapons! The deadline for New York residents to register their so called “Assault Weapons” and “High” (read standard) Capacity Magazines came and went. An estimated million plus, formerly law abiding, gun owners have refused to comply with Cuomo and down state Democrat’s naive belief that the NY Safe Act, passed in a so called emergency session of the New York legislature, could force free people to register their hard earned property.
And who can blame these once lawful gun owners, with a president that picks and chooses which laws he will follow or enforce, as well as an Federal Attorney General that operates daily with a Contempt of Congress charge and gun running scandal, “Fast & Furious”, hanging over his head. Why should the average New York joe, bother to follow the law, especially when it is in direct conflict with the Constitution of the United States, the one true law of the land.
If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!
In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”
Why can the British do that? They are a monarchy not a Republic, duh!!!
” military-grade weapon of war has been used on the American people ”
Right there it tells us that tom is a failure as a law student. He hasn’t taken the time to do the basic research on what he is writing about.
So Tom, please tell us, specifically and in detail, which militaries around the world issue the AR 15 to it’s troops as a standard operating procedure? Which wars, and with what countries, has the AR 15 played any role, however insignificant?
Tom is merely parroting what he has heard from other, equally ignorant, people. And yet he thinks those gun owners should “feel comfortable” debating with him. And he thinks he is presenting “honest, intellectual” information.
The real question is, would YOU hire Tom to be YOUR lawyer if your future was on the line?
Re: Last question –
The author fails to note that there are 2 classes of militia: select and peoples’, or as defined in current law the organized militia (i.e. the national guard) and the unorganized militia (i.e. the armed populace). Select militias are creatures of the government and wholly beholden thereto. A peoples’ militia consists of the people who are suitable armed and are willing to act individually and in concert for the preservation of Constitutional principles and the social order when .gov fails to do so.
In U.S. vs Miller SCOTUS held that only firearms with military utility fall under the purview of 2A protection. Thus the AR-15 should be specifically protected.
EGGS ACKLEY. ‘Couldn’t have said it better myself, although I find myself constantly saying it.
England now has the sort of extreme gun control that American gun banners can only dream about. Effectively no handguns at all, and severe restrictions on most rifles and shotguns, limiting them to break open and bolt action mechanisms.
My question is this, if guns really are the problem why according to official UN statistics does England now have a violent crime rate five times as great as gun crazy America?
And don’t just say they track crimes differently, though I agree they do, because their tracking is intentionally set to minimize reportable crimes, so the actual numbers are likely much worse that what the UN reports.
You will not find a single reference from the 18th or 19th century saying that the right to keep and bear arms was limited to militia service. You will find many saying that it is more general. In fact, the text of the 2nd Amendment recognizes the right of the people to keep and bear arms as pre-existing the constitution, and (for whatever reasons) forbids the federal government from infringing it.
Even if you empower the federal government to infringe the right of the people to keep and bear arms — it is still infringing a right. Regardless or the reasons the federal government was forbidden to infringe that right, states refused to ratify the Constitution until the prohibition of infringement was made explicit.
Therefore, if the Federal government violates this, its moral legitimacy to govern will be gone.
As for Great Britain, other countries will do whatever they wish to do. Over the course of the 20th century some countries became communist, some became fascist. That other countries may do such things is irrelevant to us.
(Cue Graham Chapman) “Sorry. Too logical. Next sketch….”
The entire purpose of the Second Amendment is not to maintain a “well-regulated militia.” That particular clause of the amendment merely cites an example as to why the right of the people shall not be infringed. Anyone knowledgeable with English grammar knows that, as did also the justices sitting on the highest court in the land. All the other amendments in the Bill of Rights (amendments 1 through 10, inclusive) pertain to the rights of the people, not the government. You would have us believe that the 2nd amendment, exclusive of the others, does not pertain to the rights of the people.
As for England (and the other members of the United Kingdom), although they may have what is called a Constitutional Monarchy, they lack one thing – a constitution. They have customs, they have traditions, but they lack a solid foundation upon which to build their government. Parliament has the full power to change whatever laws they have, which the Crown must sign, and there’s nothing saying they can’t. Thus, over time, they slowly took away the peoples’ right to self defense, and nobody could lawfully complain.
I sure hope that our current crop of sergeants are as knowledgeable and devoted to their oath as you are, Sarge.
Thank you for your service.
Your smug attitude is the exact reason most people I know despise progressives.
I call it, “the hauteur of the self-annointed”.
Will a disarmed America look like The UK or more like Mexico and other disarmed latin American countries?
What an odd construction to see at a Catholic school… Self-defense deprecated…
Is it no longer fashionable to assert that “life is a gift from God”? Even the Declaration of Independence posits that “all men … are endowed by their Creator…” with gifts (rights) including life.
So, if we have an unalienable right to life, must we not also have a corollary right to defend that life? For if we have not the right to defend, of what value is a right to life? And if we have the right to defend, must we not also have a corollary right to the means of that defense? If we have no right to the means of defense, then we have no right to the defense, and therefore have no right to our life.
Of course, the writers of the Constitution made no mention of “defense”. They also neglected to forbid Congress disallowing sunrise or rainfall. Perhaps they understood that some subjects are beyond the reach of human law.
See reply to fsilber:
(Cue Graham Chapman) “Sorry. Too logical. Next sketch….”
Pure nonsense, the AR-15 is not a weapon of war. It’s obvious you have never been in the military and you are no constitutional scholar.
Oh, but it LOOKS like a weapon of war, and I’m ESCAIRED!!! [eyecross]