“Reasonable Restrictions”

There has been a lot of talk about “common sense” gun laws and “reasonable restrictions” on the 2nd Amendment.  I wrote the following to summarize my thoughts on that.

The full text of the 2nd Amendment of the US Constitution reads as follows:

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.

To anyone but a lawyer or a political agenda, it’s pretty straightforward. However, very few, even among diehard arms rights supporters would claim that it’s truly unlimited: that literally everybody with a body temperature somewhere near 98.6 degrees Farenheight (say within about 20 degrees) must be permitted to own, possess, carry, and use any kind of weapon they can get their hands on. The controversy is generally over just what constitutes a “reasonable restriction” particularly since there is no allowance in the Constitution for any restrictions whatsoever . . . or is there?

The 5th Amendment of the US Constitution contains the following text:

nor be deprived of life, liberty, or property, without due process of law;

A person cannot have life, liberty, or property taken without “due process of law.” Implication then, is that with due process life, liberty, and/or property can be taken away. And therein, lies the heart of what “reasonable restrictions” can be permitted. A specific incidence of one’s liberty, the Right to Keep and Bear Arms, can be taken away by “due process of law.” The most basic example of this is criminal conviction: part of a criminal sentence can be that one loses this particular liberty. Now, this doesn’t just apply to criminal convictions. Courts can find an individual incompetent to manage their own affairs, mandating institutionalization or other forms of “supervision.” In these cases, too, “due process of law” constitutes a legitimate means of reducing/restricting one’s liberty, including the Right to Keep and Bear Arms.

I would also note that minors are generally not granted the full liberty of adults: minors are not permitted to vote, their parents have the right to search their rooms/possessions, etc. This has been true since the very beginning of the nation so it’s not a recent “reinterpretation” of the Constitution as so many things are. These various rights would seem to be “held in trust” by the parents/guardians on the minor’s behalf. The parent decides if a search is permitted. The parent decides if the child can run a press and what will be in it. The parent decides if and to which church the child will attend. And the parent decides how much of those decisions to allow the child to make for his or her self. In like vein, then, the parent should be the one to decide whether the child may keep and bear arms or not. But, as in all things, the parent’s authority carries with it (or should carry with it) responsibility as well. The parent needs to be held fully accountable for misuse of any such liberties. If the child shoots a classmate with a parentally authorized firearm, the parent needs to be tried right alongside the child–and facing adjoining cells. This should encourage the parent to be very, very sure that the child has sufficient maturity and responsibility before permitting the child to bear arms.

The other side of the coin is the “what” rather than the “who.” In other words, instead of limitations on who may keep and bear arms, what kinds of weapons should be permitted. Here, Constitutionally speaking, the issue is completely clear cut: the Constitution puts no limits on what constitutes “arms” therefore there should be no limit on the what. This is where people start saying “but…nukes!” Well, there’s a solution to that:  the Amendment process. You want to exclude “Weapons of mass destruction” from being “arms” that people have the right to keep and bear?  Then draft a Constitutional Amendment that clearly defines such weapons and removes them from coverage under the 2nd Amendment. The key there is “clearly defined” and it may well be that only the Nuclear component of WMD can be so defined. Chemical weapons? How do you define a chemical weapon that doesn’t also include common household chemicals? Biological? How do you tell whether those bulging cans were just a case of careless storage or deliberate cultivation of botulin bacteria? These may be a genie that can’t be put back in the bottle. Still, a Constitutional Amendment restricting Nuclear Weapons to properly licensed groups and individuals (provided it’s worded well enough to distinguish between, for example, nuclear weapons and a tritium watch dial, or night sight) would likely receive widespread popular support.  You should have no trouble getting 2/3 of the House and 2/3 of the Senate to approve such an Amendment and 3/4 of the States to ratify it.  That is, if you’re really worried about nukes and not just using that as a red herring when what you really want to restrict are ordinary personal arms which have nothing to do with nukes.

But that’s why the anti-gun folks would never go for such a Constitutional Amenment.  It would underline that anything not so exempted is actually covered by the 2nd.  It’s not nukes they’re worried about.  That’s just an excuse to attempt to ban century old firearms technology.

And that, is my thought on what is, or should, constitute “reasonable restrictions” on the Right to Keep and Bear Arms.  Criminals or the mentally unsound, if so judged after proper due process may have their rights restricted.  And minor children have their rights “held in trust” by their parents or guardians’ suffrage, with the parents or guardians taking responsibility for the results of what they allow their children to exercise.

Anything else?  Amend the Constitution properly…if you can.

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