December 29, 2012 in Opinion

Gun law limits offer backdrop for discussion

David Roland
 

Our nation is grieving. In the wake of a string of tragedies in which deranged persons used firearms to maim and kill innocent bystanders, many Americans are – quite understandably – calling for a renewed public conversation about whether state and federal laws should restrict the types and quantity of guns and ammunition that citizens may lawfully possess.

In this discussion, it is vital to understand the constitutional limits on laws restricting the possession and use of firearms. After all, it makes no sense for people to call for Congress to pass a law that Congress has no power to pass, and the courts have determined that Congress does face some limits in this regard. For example, in 1995 the U.S. Supreme Court held that Congress’ power to regulate interstate commerce does not give it authority to prohibit the possession of firearms in a school zone. This means that some of the types of laws that people may wish to see the federal government enact are simply beyond its power.

State governments have broader authority to fashion laws governing citizens’ behavior, but there are constitutional limits at this level as well. The U.S. Supreme Court has held that the Second Amendment means, at a minimum, that citizens have a right to possess a functioning handgun within their own home. As a result, no government body may pass an outright ban on citizens’ ownership of handguns. Federal courts are currently assessing whether the Second Amendment’s protections for gun ownership extend beyond one’s home or to other types of firearms.

But even beyond the protections afforded by the Second Amendment, state constitutions typically make a citizen’s right to own guns more explicit. The Washington Constitution plainly states that individual citizens have a right to bear arms in self-defense. Several other states go even further, establishing that citizens have a right to bear arms in order to defend themselves, their family, their home and their property, as well as for hunting and recreational uses. Idaho’s constitution explicitly forbids any law that would permit the confiscation of firearms unless the specific gun to be seized was used in the commission of a felony.

Some may be tempted to say that these constitutional protections for gun possession should be set aside because they are no longer relevant or needed. This is an idea that can be part of the political conversation – in fact, both the United States Constitution and our state constitution provide for an amendment process so that citizens can make adjustments when they believe it wise to do so. But our constitutions protect certain rights because the framers knew that in troubled times a large portion of the population might find it expedient to pass laws that would limit or destroy those rights. Requiring a constitutional amendment before laws may infringe on these rights creates time for sober reflection as the population determines whether the proposed changes are indeed prudent.

Thus, advocates for increased gun control may, indeed, work to amend these constitutional provisions. But until such amendments take place, any new legal limits on gun ownership and possession must not deny citizens the right to keep and bear arms as necessary to defend themselves and their homes.

David Roland is the director of the Theodore L. Stiles Center for Liberty at the Freedom Foundation in Olympia.


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