Thursday, June 26, 2008

The Second Amendment and Guns Near Schools

Mark Walsh makes an important point from the decision in District of Columbia v. Heller decision handed down by the Supreme Court:
In his opinion for the 5-4 majority in District of Columbia v. Heller, Justice Antonin Scalia has a passage stressing that the ruling "should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

In his dissent, Justice Stephen G. Breyer questioned why Scalia believed those exceptions were consistent with the Second Amendment.

"Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated?" Justice Breyer asked. "Assume, for argument’s sake, that the Framers did intend the Amendment to offer a degree of self-defense protection. Does that mean that the Framers also intended to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table?"
Breyer makes a fair point.

But here is the problem and why cases that may come in teh future may end up with markedly different results. The District of Columbia, despite home rule, is still subject to Congressional oversight. As a result rules for other cities and states result in a different analaysis.

Second, while the Court affirmed the right of individuals to bear arms, it expressly said that some reasonable restrictions are still permissible.

But here is my rebuttal to Breyer. Should parents be concerned about children picking up a loaded gun from their parents' beside? Sure they should and a rational parent will take necessary steps to prevent the problems that may be associated with that danger. What the majority is saying is that the government should not be the ones make the safety determination. A child injured by picking up a loaded weapon in their home is a matter for the family to deal with and I am sure than any parent will bear the stain of guilt for that injury forever. But because it may happen does not lead to the necessity of the state barring possession of weapons. Therein lies the heart of the Second Amendment.

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