A clerk peers out from a gun shop Wednesday, Dec. 19, 2012, in Seattle. The reaction to the Connecticut school shooting can be seen in gun stores and self-defense retailers across the nation: Anxious parents are fueling sales of armored backpacks for children while firearms enthusiasts are stocking up on assault rifles in anticipation of tighter gun control measures. (AP Photo/Elaine Thompson)
Updated: January 29, 2013 6:21AM
There should be no doubt that a prohibition on semi-automatic weapons would pass Second Amendment muster. Important, the Second Amendment will be the foundation for its legal strength.
The Second Amendment does not protect the rights of gun owners, it protects the rights of all Americans. No one is specially privileged. Nor does the Second Amendment protect any so-called right to own any kind of a weapon. No one would seriously suggest that the Second Amendment protects a right to bear nuclear arms.
What the Second Amendment does protect is the right to defend oneself, individually and with neighbors, against threats of violence. The essence of the Second Amendment is the eternal human right of self-defense: all of us, individually and in communities, have an inalienable right to defend ourselves. “A well regulated Militia, being necessary to the security of a free state” means that people have constitutionally protected rights to decide how to keep and bear arms.
Simply offered, there is substantial evidence that massacres involving guns pose a threat, and the Constitution enshrines the right of self-defense against that threat. That right includes the right of communities to decide that, for the common defense of all citizens, some controls on weapons are reasonable.
As with any type of constitutional protection, one person or group’s right may unreasonably intrude on another person or group’s right, and these issues must be resolved case by case. The Supreme Court has ruled, for example, that a city’s right to self-defense does not trump an individual’s right to have in his home a handgun, the quintessential weapon for defense of one’s home. The case law does not suggest (nor should it) that one person or group’s rights are categorically inferior to another’s or that one person’s rights to have the capacity for self-defense must necessarily supersede the community’s right to self-defense from rampant gun proliferation.
The legality of banning semi-automatic weapons is clear. The Supreme Court has long held that “dangerous and unusual weapons” such as machine guns are not within the scope of the Second Amendment’s protections. Like machine guns, semi-automatic weapons are designed primarily for killing many people quickly, and semi-automatic weapons have a proven capacity for inflicting mass casualties before first responders can intervene.
The drafters of the Second Amendment were familiar with handheld guns that could fire a few shots before needing to be reloaded. These guns were an individual’s protection against hostile elements, wild animals and marauders. These guns were not designed nor very effective for mowing down dozens of innocent people in an instant. Indeed, the drafters of the Second Amendment could not even envision such a weapon.
It must be said that semi-automatic weapons do not make the crime; they make the crime worse. The weapon is not responsible for whatever insane rage motivates massacre; the weapon is responsible for enabling that rage to take so many lives so quickly and so without hope for survival. It was the same in so many of the horrors to which we’ve become accustomed, from Columbine to Oslo.
There is a reason monsters turn to semi-automatic weapons to vent their hate — these weapons are very useful for killing large numbers of people.
Certainly, a community’s Second Amendment right to organize how arms are kept for its individual and collective defense must trump the not constitutionally protected right to sell and own weapons that the courts rightly consider outside the Second Amendment’s protection of “arms.” There should be no question of a city’s Second Amendment right to prohibit automatic or semi-automatic weapons that are used predominantly for massacring people in substantial numbers.
Barry Kellman is a professor of law and director of the International Weapons Control Center at DePaul University.