Is Gun Control Unconstitutional?

The simple answer is no, gun control is not unconstitutional. The explanation is far more complex, of course. Let’s look at the basics first. Here is the text of the Second Amendment of the U.S. Constitution:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

A Well Regulated Militia

Okay. Will all gun owners who are part of a well-regulated state militia please raise their hands? Right then. For now, we’ll ignore the fact that the purpose of these well regulated state militias outlined in the amendment were intended to put down slave uprisings and preserve slavery. It could be argued now that state police and national guard units are the new well regulated militias, and their need for firearms is understandable. But as the amendment is written, the right to keep and bear arms is tied specifically to the necessity of the militia. Therefore, if you are not a member of the aforementioned militia, you have no need of said arms. Until 2008, this was the way the amendment was interpreted by the Supreme Court and the lower courts of the land. The 2008 decision was where the interpretation changed to recognize an individual right to bear arms.

What the Supreme Court Actually Said

In fact, conservative sweetheart Supreme Court Justice Antonin Scalia ruled in 2008 that could not ban handguns because “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Note that his ruling was that there can be no across-the-board ban of handguns because of the second amendment. His decision did not render handgun regulations unconstitutional, nor did it render prohibition of other weapons, like assault rifles, unconstitutional. The Supreme Court upheld New Jersey’s assault weapon ban in 2001, and it will likely have to rule on the constitutionality of new assault weapon bans like the one in New York State. But the precedent set by Justice Scalia suggests that these bans will remain upheld.

Your Rights Don’t Trump My Rights

I confess that I just don’t understand the resistance to an assault weapon ban. Yes, you have the right to own a firearm to protect yourself, but no, your right does not trump my right to be safe in a public place. 70 people were shot in the Aurora, Colorado movie theater before that horrific event was over with 12 people dead. Hundreds of bullets were fired at Sandy Hook Elementary School, murdering 20 children and the adults who tried to protect them. Do you know what sort of damage these weapons can do? It’s disgusting. No civilian should be allowed to have that kind of firepower. You have a right to bear arms, but we have a right to life, liberty, and the pursuit of happiness. Your right to bear arms does not mean you are allowed to have any grade of weapon you want. Yes, people probably still would have died if these gunmen had been able to obtain guns with 10-shot magazines, but they would have had to stop and reload more often, allowing more victims to escape and become survivors. If even one of those children could have escaped, it would be worth it. In what scenario does any civilian need a semi-automatic weapon for protection? Nothing sort of a post-apocalyptic scenario. Let’s limit the lethality of the weapons available in this country. We have a responsibility to keep our communities safe. Rights come with responsibility. All rights. Let’s start being more responsible.

But Cars Kill People Too!

I’ve seen the argument made that we should ban all cars because car accidents kill people. This is not a legitimate argument. Maybe it would be if the government was trying to repeal the Second Amendment and ban all guns, but that’s simply not the case. And cars are strictly regulated. They are defined as a deadly weapon in manslaughter and vehicular manslaughter cases. If you want to drive a car, you have to pass a test to become licensed. If you are caught driving without a license, you are arrested. You are not allowed to drive drunk or under the influence of anything else that impairs your ability to drive safely. In New York State, you are not allowed to text or talk on your cell phone while driving because of the inherent safety issues. Seat belt laws were instituted to reduce car crash deaths. When a vehicle defect is found to cause death, the vehicles are recalled by their manufacturers for safety. Unsafe vehicles are taken off the road and off the car lots. Car manufacturers regularly add new safety features to protect consumers in the event of an accident. Why are gun owners and manufacturers exempt from these basic safety standards? We even remove bedding from the marketplace when a product causes accidental death. Five babies died from accidental use of a certain crib sleep positioner, and it is no longer being sold anywhere. Twenty children died when a man intentionally used a product that was manufactured for maximum lethality, and it’s still available for purchase. This is not logical.

But Criminals Don’t Follow Laws!

Another hollow argument is that criminals don’t follow laws, so legislating guns won’t keep them out of the hands of criminals. By that argument, we shouldn’t have any laws, because rapists will still rape women, thieves will still steal property, and so on and so forth. Part of our problem now is that our current gun laws are a convoluted law from state to state. It’s legal to buy certain types of weapons in one state but not another. It’s fairly easy to cross state lines with a weapon you couldn’t legally obtain in your own state but could legally buy 100 miles away. If those weapons are not longer legal throughout the country, it then becomes a matter or trying to get past Customs and Border Patrol. Sure, the hardcore criminal element will still find a way around it, but your run-of-the-mill neighborhood thugs won’t be able to pull it off. High capacity weapons will disappear from our streets once a ban is put in place.

Also, if simply possessing a prohibited weapon is illegal, it does not have to be used in the commission of a violent crime before the individual intending to use it follows through with their deadly intent. If a drug bust turns up a dealer who has high capacity weapons in his possession, you get that guy off the street before he mows down someone else in a hail of bullets. You don’t own a high capacity weapon unless you intend to use it. For those of you who have one for sport, I’m sure another model can be just as sporting. More sporting, I might add, since you have to strive for accuracy when fewer bullets are involved.

You Still Have Your Guns

I don’t like guns, and I wish we had no need for them. But I’ve heard the legitimate arguments, particularly from hunters and those who live in rural areas where police protection is entirely unhelpful because it’s too far away. Sadly, I recognize that people want protection from criminals who might break into their homes, as well, or from violent former domestic partners. The proposed gun control regulations will not take away your guns or otherwise prevent you from keeping a gun for protection or sport. What these regulations will do is start us on the path to a safer populace, with universal background checks making it increasingly more difficult for dangerous people to get their hands on firearms, and making those firearms people are allowed to have less lethal. Responsible gun owners have nothing to worry about, except maybe downsizing your extended clip magazines. And if the assault weapon ban goes through, and you end up having to hand over some of these weapons, it’s not much different from a product safety recall. (And I do believe the manufacturers should offer some sort of compensation or exchange if this comes to pass, since they would have been legal at the time of purchase.)

Going back to our car metaphor, your car isn’t legal to drive if it doesn’t pass emissions tests. In New York State, it’s not legal to drive if we don’t have a current registration and auto insurance policy, either. So after passing a written test and a practical test, after spending over $10,000 on a vehicle, we still have to pass inspection every year, we have to pay the state to keep our registration current every two years, and we have to pay an insurance company to remain continuously insured. We have to follow all vehicle and traffic laws. Failure to comply with any of these things forfeits our right to operate the vehicle we purchased. We all have products we’ve purchased that we have to ensure comply with all laws, those that exist today and those that will exist in the future. Guns are a product like any other. It only makes sense that we finally start treating them as such.

Tell Congress: Pass President Obama’s gun proposals immediately.

Christina Gleason (976 Posts)

That’s me: Christina Gleason. I’m a writer, editor, and disability advocate. I'm a multiply disabled autistic lady doing my best in this world built for abled people. I’m a geek for grammar, fantasy, and casual gaming. I hate vegetables. I cannot reliably speak, so I’ll happily conduct business over email or messaging instead.