by Jeremy Leaming
For far too long the gun lobby has loudly proclaimed that the Constitution bars almost any kind of law aimed at curbing gun violence. But since a string of mass shootings last year culminating in the Newtown mass shooting that took the lives of 20 children, there’s been a growing chorus of voices pushing back against the gun lobby’s platitudes and simplistic, often misleading, interpretation of the Second Amendment.
More than 50 constitutional law scholars signed a letter explaining why the Second Amendment is not absolute or unlimited. Very few of rights and liberties enshrined in the Constitution are absolute. One of the scholars who signed that letter is among the nation’s greatest constitutional law scholars -- Laurence H. Tribe, a distinguished Harvard Law School professor.
Hours before President Obama, a former student of Tribe’s, gave his State of the Union Address, Tribe testified before a Senate Judiciary committee examining ways to curb gun violence without trampling the Second Amendment right to bear arms.
In his oral and written testimony Tribe made it clear that efforts to reduce – not eliminate – gun violence through government action are not beyond reach because of the Second Amendment. In current Supreme Court rulings, such as D.C. v. Heller, Tribe explained the justices took certain policy choices off the table for consideration and “thereby cleared the path to reasonable regulations to be enacted without fear that those policy choices would ever open the door to unlimited government control or be imperiled by exaggerated interpretations of the Second Amendment.” (Click picture of Tribe for video of his opening remarks, or see here.)
Tribe noted that Justice Antonin Scalia author of the majority opinion in Heller noted that the court’s interpretation of the “Constitution leaves open a variety of regulatory tools to combating the problem of gun violence in this country.”
In his written testimony, Tribe put it this way: “Proposals to disarm the American people, to leave firearms solely in the hands of the military and the police, have been decisively taken off the table – if they were ever truly on the table – by the Supreme Court’s Second Amendment decisions in 2008 and 2010 [Heller and McDonald v. Chicago respectively].”
(And as Tribe noted for nearly a decade he has staunchly defended the “individual rights view ultimately taken by the Supreme Court in 2008.” Tribe was not before the Senate Judiciary committee to advocate for outlandish restrictions on the individual right to bear arms, merely to explain that some regulations do not amount to constitutional violations.)
In Heller, as Tribe noted the majority invalidated a District of Columbia regulation that Tribe said “essentially outlawed the possession of handguns in the home, where the need for self-defense is, as Justice Scalia wrote, ‘most acute.’”
That type of gun restriction was not one that would withstand constitutional scrutiny, but the Heller majority went on to explain that the Second Amendment, like the First Amendment, is not absolute.
Tribe described several measures to help address gun violence that could pass constitutional muster. For instance, citing Heller, Tribe said that “limits on gun ownership ‘by felons and the mentally ill’ are constitutionally sound. And Tribe continued “most relevant to today’s hearing, regulation of ‘dangerous and unusual weapons’ – the constitutionality of which the Court had no intention of casting into doubt."
Tribe noted additional regulations that would not undermine the individual right to bear arms, such as laws banning illegal “straw purchasers” and gun trafficking “both of which can totally frustrate any system of background checks for gun registration.”
Universal background checks, limits on high capacity ammunition magazines, and “lethal weapons that someone can keep firing for ten rounds or even more without reloading” are also common sense measures that would not harm the Second Amendment. He explained that, “Banning those weapons give people the chance to escape and gives the police the chance to interrupt the slaughter.”
During his State of the Union Address, President Obama stated that many Americans – even “those who believe in the Second Amendment – have come together around common-sense reform, like background checks that will make it harder for criminals to get their hands on a gun.”
He continued, “Police chiefs are asking for our help to get weapons of war and massive ammunition magazines off our streets, because these police chiefs, they’re tired of seeing their guys and gals being outgunned.”
Professor Tribe in accessible fashion explained to senators why the Second Amendment does not prohibit a bit more regulation; common sense regulations that will not eviscerate the individual right to bear arms.