Guest Post: Second Amendment and Gun Control

Matthew Hovey is an attorney with Wolf Baldwin and Assoc. in Pottstown

Blogger's Note: This is the full version of Matthew Hovey's guest column which was recently published in The Mercury and was shortened to meet space requirements. The Digital Notebook welcomes submissions for publication here. Send them to ebrandt@pottsmerc.com

By: Matthew T. Hovey, Esquire

This is not a writing against gun control. As irrational and barbaric mass shootings continue at an alarming rate, something must be done. Children must be safe, lives cannot continue to be lost in this way.

Rather, this is to be an aid in dialogue on the issue. Discussion on gun control cannot be productive without an understanding of the origin and purpose of the Constitutional limitations on gun control legislation.

There are common misconceptions about the purpose of the 2nd Amendment. The primary purpose of the Amendment is not to protect hunters, or even to allow people to protect their homes from intruders. Its primary purpose is much more political in nature. The reason that it is listed second in the Bill of Rights, immediately after the right to free speech but before amendments which deal with due process, unreasonable search and seizure, cruel and unusual punishment, and a preservation of states’ rights, is that it is a fundamental check on the federal government.

With the 1st and 2nd Amendments, the drafters of the Constitution (the “Framers) wanted to sanctify and preserve citizens’ ability to defend against a tyrannical government peaceably, through free speech and assembly, as well as violently, if necessary, through citizen armies (referred to then as militias). Historically, tyrannical governments oppress its citizenry by suppressing free speech and mass assembly, such as protests and strikes, and by outlawing possession of weaponry. Citizens armed with both the pen and the sword are more able to rise up and overthrow oppressive rulers. Keep in mind that our Founding Fathers founded this country with both the pen (e.g., a popularly supported Declaration of Independence) and the sword (a citizen army in the Revolutionary War). The Framers wanted to ensure that if our democracy ever produced a true tyrant, the citizenry would be fully equipped to restore our democracy and its fundamental freedoms.

This purpose is the reason why there are restrictions on the government’s ability to easily outlaw classes of firearms or maintain databases of gun owners and track all gun transactions. The 2nd Amendment serves as a restriction on the government’s ability to eliminate or suppress an armed citizenry. In theory, a government which is similarly armed as its people should be hesitant to try to oppress the population, and a government relatively blind to the ownership of the citizenry’s firearms cannot execute a mass disarming of the populace in times of political strife.

Agree or disagree, this is an interest the courts must consider when evaluating the constitutionality of all restrictions placed on the right to bear arms. It is anticipated that all legislation passed in response to the justified outrage over mass shooting will eventually be subjected to scrutiny through this lens. It is a competing value enshrined in the Constitution.

The problem, however, is that weaponry developed in ways the Framers never imagined. A pure interpretation of the 2nd Amendment would mean that any weapon which the government could use to oppress the people should also be available to the citizenry in order to serve as a check and balance. In other words, everyday people should be entitled to possess, unchecked, nuclear weapons, biological weapons, military grade firearms, computer malware, tanks, sophisticated drones, and all other “arms” – including whatever may be developed in the future. I expect that most people will consider this to be ludicrous. Who wants their neighbor to be able to store anthrax or a nuke in case the government moves to suppress all of us? Not me.

The Supreme Court agrees and recently acknowledged that, as with the First Amendment, the government can place reasonable restrictions on the right to bear arms. Competing with the fundamental interest in an armed citizenry is a fundamental right to safety. The question remains unanswered, however, as where the balancing point is between those two competing interests. Challenges to legislation adopted in the wake of the endless stream of mass shootings, however, will likely serve to clarify that line, possibly with the invalidation of those solutions.

Most other developed countries in the world do not have a 2nd Amendment, in part because these countries were not born through a war, but rather evolved peaceably through reforms. As a result, those governments are legally freer to err on the side of safety, for better or worse depending on your view.

A repeal of, or an amendment to, the 2nd Amendment will not happen though. At minimum, a repeal or amendment would require 75% of all states to approve such change. Therefore, proposals which do not respect the realities of the 2nd Amendment are most likely a waste of time and energy. In part, this why many pro-gun people push for solutions more grounded in addressing mental health, rather than gun restrictions.

Nevertheless, as a side note, legislation addressing mental health issues compete with the constitutional right to due process (e.g., restrictions on the government’s ability to involuntarily commit people, or to strip them of rights like gun ownership). Patients’ rights advocates will have their say regarding these potential solutions as well.

For these reasons, the issue is complicated, and will require a multi-faceted solution. Compromises are best reached though when one side of an issue understands the other side’s interests. Hopefully a better understanding of the purpose of the 2nd Amendment, and the complications it causes for a solution, can led to more productive discussion on how to makes us all feel a little safer.

The Constitution: Our Glorious Muddle

Debate.

Disagreement.

Compromise.

These are, perhaps the true cornerstones of the American Constitution over which our nation seems destined to wrangle forever.

It was a debate that was front and center locally last week at a local township commissioners meeting where, some argue, the nearest thing to an actual Democracy exists -- local government.

A resident of Upper Pottsgrove, France Krzalkovich, who was running for office and subsequently lost in the May primaries, petitioned his local township board of commissioners in February to adopt a resolution in support of 2nd Amendment rights, but which also contained the trappings of a long-standing Constitutional debate that revolves around the 10th Amendment.

A refresher:

Second Amendment: "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."

Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

What seems clear at first, quickly becomes less so once you start asking questions.

For example, does this mean a state law regulating firearms violates the 10th Amendment? Is the purpose of the 2nd Amendment only to have a militia? Does "well-regulated" mean gun laws are Constitutional?

The position advanced by the resolution Krazalkovich brought to the commissioners -- similar to a group of people who believe the 10th Amendment should justifies everything from legalizing marijuana to tossing Obamacare and legalizing same-sex marriage -- is pretty simple, and, at the same time, not.

Let me give summarizing it a try: If the second amendment says the right to bear arms shall not be abridged, and the 10th amendment says any power not designated to the federal government falls to the states, then any federal gun law violates the 2nd Amendment and thus, is unconstitutional.

(His thoughts on the subject are outlined in an April 19 letter to the editor published in TheMercury. You can read the full letter by clicking here.)

Several of the commissioners took a run at this and their positions can, for the most part, be read in their entirety in the minutes of the Aug. 19 commissioners meeting (not yet on-line, so, no link).

The two who voted in favor of adopting the resolution -- Russ Noll and Herb Miller, both of whom are running for reelection on the November ballot -- took different approaches to their support.

Noll said he feels the majority of the township residents support such a resolution and said after 15 years in local government, he had seen too many requirements come down from state and federal sources without the re-sources to pay for it.

Miller argued that guns help when police can't get there in time and took two lessons from history: noting that the Brown Shirts began by registering guns in Germany, Austria and Poland, and then took them away so when the Nazis invaded, they had less defense. He also said the Japanese did not invade the west coast of the U.S. because they believed too many Americans had guns and would take up arms against them.

Commissioner Peter Dolan, an attorney, argued that the landmark Supreme Court case of Marbury Vs. Madison established the precedent of "judicial review," putting the question of what is and isn't Constitutional in hands of the courts, not local governments.

Commissioners Chairman Elwood Taylor, a retired history teacher and former Marine marksman, issued a lengthy argument against the resolution arguing first, that the nation (and Pennsylvania) had already rejected "nullification;" that such arguments had been used to justify everything from segregation to the recent issuing of same sex marriage licenses in Montgomery County; and pointed to the trouble that followed in the Schuylkill County Borough of Gilberton when the council there adopted a similar resolution at the urging of their police chief Mark Kessler, who has since become famous for posting obscenity-laced YouTube videos and arming citizens as part of a Constitutional Security Force."

I was not able to attend any of the meetings where this debate unfolded, so I can't speak to the tone, but, on paper at least, I have to congratulate all sides on conducting a thoughtful and civil discussion on subjects about which reasonable people can disagree.

Clearly, there is plenty of room for argument which is really, I believe at least, by design of the founders.

They were truly brilliant men, but perhaps the apex of that brilliance was to recognize that they could not predict the future and they did not have all the answers.

(Or, they were just politicians who wanted to go home and just fussed around until they got vague language everyone could agree to....)

In either case, it seems to me that one of the dead-ends of Constitutional debates has to do with determining the "intent" of the founders.

In all likelihood, the only measure of their "intent" we can agree upon is that they were trying to hold the world's newest and largest Republic together. Everything else was probably up for grabs.

In other words, maybe they wrote the Bill of Rights so vaguely to say in essence: "we did what we could, you figure out the rest as it becomes necessary."

Much of the language in the Constitution is vague because the founders could not agree on anything more specific.

Having lived through the confusion and fractiousness of state-run governments under the Articles of Confederation, those who came together in Philadelphia had neither unity of purpose, nor unity of opinion.

James Madison

Many thought they were charged simply with tweaking the Articles of Confederation while others, James Madison and Alexander Hamilton chief among them, had a more radical idea.

(Today, it would called "an agenda" in dark and foreboding tones....)

Both Hamilton and Madison felt the country needed more central control to prevent too much democracy at the local and state level, which was causing chaos at the national level.

(In later years, Madison chafed under federal "overreach" and backed the efforts by his mentor, Thomas Jefferson, to establish state nullification of federal laws, while Hamilton never wavered from the belief that a strong central government -- and strong central bank -- were America's best hope for greatness.)

But even on the subject of a strong central government, they were agreed on the need, but not on the manner.

Hamilton, the most anglophile of the founders, wanted a single legislative branch and something as close to a Britain's Constitutional Monarchy as he could get away with.

Alexander Hamilton

Contrary to his later positions, Madison at first envisioned the national government as a kind of referee among the states, striking down some of the more knuckle-headed of the state laws and brought about by "excessive democracy."

But perhaps more important to the "intent" question is the broader issue.

Even if we could with any reasonable degree of accuracy determine the "intent" of the founders, why should the "intent" of 18th Century ideas, which included the preservation of slavery, be guiding us in the 21st century?

For example, I think the "well-regulated militia" clause of the 2nd Amendment is too often ignored by gun-rights advocates and that the founder's "intent" was for citizens to be armed so they could serve in the army if called.

Remember that at the time, "standing armies" were anathema to many of the founders (not Hamilton) and viewed as being among the very causes of the wars they fought. In other words, "if you've got 'em, you'll feel compelled (or tempted) to use 'em."

Nevertheless, I've come to the reluctant conclusion that the language of the 2nd Amendment is nevertheless clear: that Americans, for better or worse, are allowed to carry guns.

Rather than argue over what the founders intended, however, as if they are some sort of dieties whose "intent" must be worshiped despite 200 plus years of history and some awfully good arguments that its time for some new thinking; we should instead be asking a question that they themselves asked in their own times: "should we maintain the status quo or should we make some changes?"

Certainly, the ability to make amendments to the Constitution is evidence of their recognition that change may be necessary.

And we've made changes, with slavery and, twice with prohibition.

Instead of arguing what the founders "meant" when they penned the 2nd Amendment (or any other amendment for that matter), the question we should ask is "do we need to change it?"

After the inaction that followed Newtown and, now, the Washington, D.C. Naval Yard, I have little hope that we will be having a substantive discussion on that question any time soon.

But the genius of the U.S. Constitution, either by design or happy accident, is that we can have that discussion as the world, and our Republic, evolves.

We can even have that discussion at a local township commissioners meeting.