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.