Sunday, February 26, 2017

Recent court ruling gets it right: the Second Amendment is NOT absolute

Fourth Circuit Court upholds SCOTUS precedent, maintains ban on “militarized” weapons is Constitutional

Last summer, I wrote about my belief that the Second Amendment of the U.S. Constitution wasn’t an absolute right — just as other amendments weren’t absolute either. You can’t defend yourself under the guise of the First Amendment speech rights if you errantly shout “fire” in a crowded theater; and likewise, there exists limits to what the Second Amendment right to owning a weapon protects.

Certainly there requires a spirited debate on where those limits exist. We should start that debate with the amendment itself, which states:
“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.”
Image via Wikipedia, by user M62
In June of 2016, I wrote that, “It is not an infringement on Second Amendment rights to regulate which weapons can be sold, and how they can be sold. The word ‘regulated’ appears in the amendment itself, and it never states that ownership of all weapons is a protected right.”

This past week, the Fourth Circuit U.S. Court of Appeals made a similar argument when it ruled that restrictions of certain weapons in the state of Maryland were Constitutional.

Shortly after the Sandy Hook shooting massacre in December of 2012, in which 20 elementary students and six faculty members were killed, Maryland passed strict rules on gun ownership — including banning ownership of AR-15 assault rifles and high round capacity magazines.

By a 10-4 en banc ruling, the Fourth Circuit Court asserted that such a law was in fact Constitutional because, they pointed out, the Second Amendment does not create an unlimited right to own all weaponry.
We conclude … that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are 'like' 'M-16 rifles' — 'weapons that are most useful in military service' — which the Heller Court singled out as being beyond the Second Amendment’s reach.

Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.
The Heller decision, of course, lifted restrictions on gun ownership in Washington D.C. But the Supreme Court, in its 5-4 decision, understood that a completely unrestricted right to gun ownership wasn’t what they were seeking to establish — rather, they wanted to lift specific restrictions to ownership. Even the late Justice Antonin Scalia himself, a staunch defender of gun rights, wrote in Heller:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ...

We also recognize another important limitation on the right to keep and carry arms.
Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
(Emphases in bold mine.)

The ruling made by the Fourth Circuit Court deserves to be upheld, even if President Donald Trump’s pick to the Supreme Court is confirmed by the time an appeal reaches the Court. Scalia and other conservative justices signed off on Heller defending the notion that restrictions on unusual or militarized weapons were congruent with the founders intentions. That standard ought to be preserved.

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