We likely will hear a great deal about the Second Amendment to the U.S. Constitution in the next several months as Congress heeds the cry for meaningful gun control legislation following the Sandy Hook elementary school massacre. Already, pro-gun legislators and gun rights lobby groups are warning about the anticipated attack on "Second Amendment rights."
But would, say, a ban on assault rifles or high-capacity ammunition magazines violate the Second Amendment? The answer appears to be "no."
From 1939 until 2008 the courts of this country almost uniformly interpreted the amendment as granting to the states the right to maintain militias, but not creating an individual right to "keep and bear arms." That view changed with the decision of the U.S. Supreme Court in the case of District of Columbia v. Heller in 2008.
The court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for self-defense in the home. The justices noted, however, that the protections of the amendment are "not unlimited."
In particular the court concluded that laws regulating the carrying of concealed weapons, prohibiting possession of firearms by convicted felons and the mentally ill, forbidding the carrying of firearms in sensitive places like schools and government buildings and imposing conditions on the sale of arms do not violate the Second Amendment.
The court also strongly implied that bans on military-style rifles specifically "M-16 rifles and the like" would be permissible.
Since the Heller decision lower courts have upheld statutes restricting the carrying of concealed weapons, banning the open carrying of firearms, prohibiting ownership of guns by misdemeanants, requiring registration of firearms, banning assault rifles and large-capacity magazines, preventing sale of guns on county property (in gun shows) and outlawing the importation of firearms into a state through interstate commerce.
In short, restrictions short of the outright banning of all firearms are likely to be upheld by the courts.
The issue, therefore, is not whether assault weapons, semi-automatic pistols and large-capacity magazines can be banned (I think they can be). Rather, the questions which all of us not just gun owners must decide are these: "Should society interfere with the rights of those who want to own firearms?" If so, "To what extent should those rights be restricted?"
The answer to the first question must be "yes."
As demonstrated by the Sandy Hook massacre, we are all impacted by the kinds and the availability of firearms in America. Gun control largely is limited by the legislative process, not constitutional law, and all citizens not just gun owners are entitled to be heard on this vital issue.
The answer to the second question depends on the acceptable uses of firearms. If we say that the appropriate use of guns is home protection, hunting and target shooting, assault rifles although they could be used for such purposes are unreasonably dangerous when measured against less lethal alternatives; for example, bolt-action hunting rifles, rifles or shotguns.
By contrast, if it is assumed that guns are needed to protect us from a tyrannical government or to engage in insurrection, then all military weaponry, including assault rifles, rocket-propelled grenades and surface-to-air missiles should be available to all citizens.
No one seriously contends that private ownership of all guns should be banned. Indeed, the Heller decision makes it clear that such a ban would be unconstitutional.
But what an increasing number of Americans are saying is that homeowners can protect their property, hunters can hunt and target shooters can shoot without using semi-automatic firearms capable of carrying enough bullets to kill a roomful of people.
Steven H. Gunn is a member of the board of directors of the Gun Violence Prevention Center of Utah. He lives in Holladay.