Are Unlimited Gun Rights Constitutionally Protected?

Of course not; the U.S. Constitution does not provide for unlimited gun rights under the Second Amendment. However, some seem to think that the only limits on the right to own firearms are for the criminal use of a firearm, and there are no limits on purchase and ownership, except age and a previous record of violent crime. To be fully transparent, I must acknowledge that I was born in the southern United States and grew up with a family of gun-owners. My father presented me with a Marlin .22-caliber single-shot bolt-action rifle with a magazine that would hold about 15 long-rifle cartridges on my sixteenth birthday, after we had moved to Los Angeles. That gift was fairly typical for fathers to teenage sons in Tennessee and Arkansas, where I spent my early years, but not so common in the big city of LA. He took me to shooting ranges and taught me the safe and responsible use of guns. I was instructed in no uncertain terms that this weapon was for target shooting and small-game hunting, but never for use against another human being unless I was absolutely sure that my life or the life of someone else was at risk. So I come to this discussion with a familiarity with guns and their proper use.

With that background, I must admit dismay that following each recent tragedy of mass killing, such as in Sandy Hook, Columbine, Orlando, and Dallas, when someone has suggested constraining the unfettered purchase and ownership of firearms, the howls of protest can be heard from the NRA and gun-rights advocacy organizations all over the land: “Keep your hands off of our guns!” “Our right to own guns is protected by the Second Amendment of the U.S. Constitution!” The argument advanced is knee-jerk outrage that any regulation of the purchase and possession of firearms amounts to abolishing that constitutional provision.

To date, I have seen no one respond adequately to the unfounded defense of absolute and unconstrained gun rights. In fact, all of our constitutional rights are regulated and conditioned by law. None of our rights under the U.S. Constitution is absolute and without qualifications. Toward clarifying this assertion, I would suggest considering four of our most important constitutional rights: property, religion, speech, and assembly. Our history of constraining these rights provides ample precedent for the regulation of firearms and undercuts the simplistic appeal to the constitutional foundation of those rights. Our most important rights are rooted in the U.S. Constitution, and all have been regulated in multiple ways. Thus there is no reason that the right to own firearms should be treated differently.

Property rights are central to the establishment and maintenance of a free society. It is this right that we claim as a crucial distinction between us and communist societies in which all property is owned by the state. It is through this right that we stake our claim to some basic measure of privacy. The late distinguished scholar John Rohr is well known for his argument that one of the key regime values of our American constitutional tradition is property. In my recent research on the homeowner association movement in China, I have noted that one of the first moves toward a freer society in that great nation was the establishment of property rights by the National People's Congress in 1997. Since that time, property ownership, mainly in the form of condominium homes, has motivated homeowners to assert claims to other rights often associated with democratic societies.

However, in spite of the enormous significance of property rights for us, it should come as no surprise to anyone who lives in these United States that we have regulated those rights with numerous constraints and controls. With respect to real property, every city and state in the land has building and safety codes that specify the standards, materials, and means for constructing homes and business structures to ensure safe conditions for occupants and those in surrounding buildings. The construction of swimming pools brings with it regulations for fencing and locks to prevent our own children and those of our neighbors from accidental drowning. The installation of tennis and other hard-surface courts requires certain kinds of lighting and restricts hours of play to diminish discomfort to surrounding residences. In my city, even the trees on my property are regulated by the city government. When I had a mature walnut tree removed, because it was leaning precariously and threatening to crash through my neighbor's roof, I was notified by the city that I had violated an ordinance requiring a permit for any tree removal. I pleaded ignorance of that law and escaped a fine, but was told that I had either to plant three young replacement trees on my lot or to pay the city $700 to plant three trees elsewhere in the city to replenish the urban canopy for environmental reasons. Since I had no room for three more trees, I paid to have trees placed elsewhere. Although I was somewhat chagrined at this unexpected expense, I realized that the purpose was a good one for all and dutifully wrote a check and acquiesced to the limiting of my constitutional right to property. Zoning regulations, noise and lighting ordinances, and health laws also establish boundaries on property rights. Similar restrictions and requirements exist for every other kind of property, such as automobiles, fishing tackle, audio equipment, boats, computers, knives, and on and on. So why not firearms?

Among our most treasured constitutional rights are those embodied in the First Amendment that guarantee free speech, freedom of assembly, freedom of the press, and freedom of religion. However, in all of these cases, the rights we are provided under our Constitution have limits and constraints: they are all regulated. We are all limited in what we can say publicly by laws against hate speech, incitement to violence, libel, and slander. We are limited from engaging in speech that involves planning a criminal act by conspiracy laws. No one may stand in front of a theater and disrupt the viewing of a movie or the performance of a play by giving a speech on one's views about anything. We are free to assemble, but not at just any place and time. The freedom of the press is bounded by laws prohibiting calls for the imminent overthrow of the government by force and libelous claims against anyone. Religious freedom is limited by laws prohibiting required religious observances and practices in public schools.

What is so different about the Second Amendment that prevents the regulation of guns? The plain truth, which seems to have been conveniently ignored by the gun lobby, is that nothing of significance is different with respect to regulation! The right to gun ownership is guaranteed by the Second Amendment of the U.S. Constitution, and setting aside for now the controversy over whether that amendment concerns individual ownership or is for the purpose of maintaining “a well regulated militia,” the U.S. Supreme Court has affirmed the individual right to firearms (District of Columbia v. Heller, 2008). That right, as all other constitutional rights, should be subject to regulation that does not infringe the right. Since all guns are not the same, it is reasonable that regulations might be established to constrain or prohibit the types of guns that represent a real and imminent threat to civilian populations. No one in our society outside the military has need of a weapon that can fire large numbers of bullets at a high rate of speed, either for hunting or for protection. No one needs to carry around a long gun in an urban location. Only some people can justify carrying a concealed or open weapon on public streets for personal protection. No one should be assumed to know how to safely use and store a firearm just because they can afford to purchase one.

The argument I have developed here leads to the following conclusions:

1. Gun rights may be regulated, since they are not inherently different from other constitutional rights. Regulation does not amount either to the abolition of the Second Amendment or to the deprivation of the rights of the American people guaranteed by the Constitution.

2. The basis for determining the legitimacy of particular regulatory measures is the need for protecting the wellbeing of others (e.g., requirements for thorough background checks, restrictions against the ownership of firearms by former felons and those on “no-fly lists,” people with mental health problems, registration of gun ownership with a variety of licensing options commensurate with the type of gun, its use, and the category of purchaser, requirements for training in the safe use and storage of firearms, and strictures against the private sale or disposal of firearms without formal registration with a government agency).

Gun rights are, and must be, regulated like any other constitutional right for the greater public good. The wording of the Second Amendment implies the need for regulation. In fact, the opening phrase of the amendment refers to “a well regulated militia,” which implies that gun rights must be regulated as one element in a militia. When will the opponents of plainly legitimate and necessary regulations of gun ownership and use for public wellbeing and safety stop throwing up specious arguments against any regulation of firearms?