I am not a gun enthusiast, but I have taught Communication Law. So every time I hear 2nd Amendment arguments, I think in terms of the 1st Amendment, which says:Congress shall make NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.In the 1st amendment case law, "no law" clearly does NOT mean "NO law."
If it meant NO law, there would be no laws about slander or libel, no local ordinances requiring parade permits, and no laws about lots of other behaviors that come under the legal definition of "speech."
The courts have ruled that the "no law" 1st Amendment protections are very important, except in narrowly-defined circumstances in which there is a "clear and present danger" resulting from the speech or behavior (Schenck v. the United States). The most common example is shouting "fire" in a crowded theater when there is no real fire," but the courts have also ruled that "speech" such as child pornography, inciting people to commit crimes, and slander/libel is NOT protected under the 1st Amendment.
In each case, it is because the lawmakers have voted, and the courts confirmed, that such "speech" represents a "clear and present danger" of harm to others.
So how do we apply this same logic to the 2nd Amendment issue of gun ownership, and particularly of assault weapons?
First, the 2nd Amendment does not mention guns, but rather covers "arms" a collective term for weapons of all types.
Second, the 2nd Amendment does not use the phrase "shall make no law." It refers to the right of the people "keep and bear arms" and says that this right "shall not be infringed." (Note that this is written in "passive voice" and it does not identify who might be doing the infringing.)
Still, the wording of the two amendments seems to have similar intent, so my original question about what we can learn about the 2nd Amendment from 1st Amendment case law remains valid.
The reality is that there are lots of national, state, and local laws and regulations limiting the ownership of a wide range of weapons. In Chicago, for example, it is illegal to carry concealed a knife with a blade longer than 2.5 inches. In New York, it is illegal to carry a dirk, dagger, or stiletto with the intent to use it as a weapon against another. You can't own your own nuclear weapon because of risk of radioactive contamination, not to mention the actual explosions (arguably a "clear and present danger").
These rules would appear to violate the absolute "shall not be infringed" requirement. But when we look at the 2nd Amendment and 1st Amendment together, it only makes sense that the same legal theories apply.
Thus, it only makes sense that arms CAN be regulated, based on the same criteria as the 1st Amendment protections:
- Is the law well-constructed, i.e. specific enough, but also not so narrow that it doesn't make sense?
- Is there a "clear and present danger" resulting from lack of regulation, making it in the best interests of society for the government to make an exception to the constitutional protection?
We regulate child pornography because children may be harmed in the making of it, even though we cannot predict which children, where, are at risk.
How does this logic translate to regulation of weapons which COULD be used in mass shooting, but there is no way to predict when and where these shootings may occur? Is this enough of a "clear and present danger" that an exception to the right to "bear" certain categories of weapons is compelling?
Regardless of what you think about the subject, the final decisions will be made via court review of legislation, based on meticulous legal arguments derived from principles such as those above.
Whatever the legislation says, the courts will not affirm, overturn, or otherwise take action based on emotions.
