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Hold your fire until you understand that no constitutional right is absolute, says state Senator Daylin Leach

Sunday, December 02, 2007
By: Daylin Leach

As a member of the state House Judiciary Committee, I received a lot of e-mails urging me to vote against the gun control bills we considered last month. Many of these e-mails argued, in some form, that the governor’s proposals violated the Second Amendment to the U.S. Constitution. The writers seemed to feel that the Second Amendment prohibits any restrictions on gun ownership. However, that is simply not how the Second Amendment works.

As a threshold matter, there are a number of technical issues dealing with whether the Second Amendment was intended to apply to individuals (I actually think it was). Further, not every federal constitutional right has been held by the Supreme Court to bind the states, and, in fact, the Second Amendment has not yet been incorporated into the 14th Amendment and applied to the states.

However, let’s put those issues aside and assume that any law we pass in Pennsylvania must pass Second Amendment muster.

The Second Amendment, like the First (and all other parts of the Bill of Rights), is not absolute. The First Amendment protects your right of free speech. But you can’t yell “fire” in a crowded theater because there is a public safety issue. You can say you are for or against the war, but not while standing with a sign in the passing lane of the turnpike. You generally can’t slander someone. You can’t publish CIA secrets in a book or claim the chewing gum you invented cures cancer, etc. There are dozens of restrictions on speech.

Constitutional law is never absolute. When someone asserts that their constitutional rights have been infringed upon, the courts employ a balancing test to evaluate the law in question. They measure how much a law infringes on a right and balance that against how important the state’s interest is in that law.

If a fundamental constitutional right is affected, the court uses what it calls a “strict scrutiny test.” In order to survive a constitutional challenge, the law must serve a “compelling” state interest and the infringement on the right must be minimal and as narrowly tailored as possible to serve that interest.

The Second Amendment offers two general rights: The right to keep (meaning own) and bear (meaning carry) arms. But that does not mean states can’t regulate in either of these areas. In fact, they do all the time. You can constitutionally be prohibited from owning a stolen gun, or a grenade launcher, or any gun if you have a criminal record. You can be prohibited from carrying a gun into a prison, an elementary school or a courtroom.

Last month, we voted down two bills dealing with guns. The first would have required a person to report the loss or theft of a gun they owned. The second would limit the number of guns a person could purchase to one per month. People can argue about the merits of these bills from a policy perspective, but there is clearly no constitutional impediment to either bill.

The two rights spelled out in the Second Amendment do not bestow a constitutional “right” not to report a lost or stolen gun. There is nothing in the wording of the amendment that even arguably says that.

One-gun-per-month is a restriction on ownership and thus does trigger a constitutional question. However, applying strict scrutiny to that law, it easily survives. The state’s interest in preventing criminal violence is well established to be “compelling.” These bills are tailored specifically to go after criminal straw-purchasers who sell guns illegally to those who could not legally get them. They do not target legitimate, law-abiding gun owners who will be unaffected by the law. (I supported both bills.)

Under one-gun-per-month, an infringement on the right to own a gun does exist, but is so minimal as to be virtually non-existent. A married couple could buy 24 guns per year. A restriction on your right to buy your 25th gun in one calendar year does not come close to infringing significantly on the underlying right. Even if one-gun-per-month becomes law, you will still be able to keep and bear arms, lots of them.

The fact is that the Second Amendment does not prohibit passage of any law that happens to have the word “gun” in it. It allows the state to pass reasonable restrictions related to public safety, so long as they still respect and preserve the underlying right to have a gun to protect your home or to hunt.

Overcoming false impressions about the nature and scope of the Second Amendment will allow us to actually consider legislation on its merits, which will be good for public safety and gun owners alike.

First published on December 2, 2007 at 12:00 am