By Irving Labovitz, J.D.
In high school civics class most Americans learn that Article V of the United States Constitution permits its amendment only after the laborious process of obtaining consent of 2/3 of both houses of Congress and then also succeeding in the torturous process of thereafter securing approbation by 2/3 of the states…a lengthy and formidable task, as had been fully intended by our Founding Fathers.
During the current presidential election cycle, and to the date of this modest essay as we approach election day, a singular accusation, inter alia, continues to enjoy a modicum of political “traction”, namely, that an opposing candidate if elected would somehow enjoy the capacity to unilaterally “take away your Second Amendment rights”, either by direct executive action, or by appointing Supreme Court justices who would interpret its meaning to constrict the otherwise unfettered right of citizens to carry arms outside their homes without measurable constraint.
As to the former, such a postulate totally ignores the Constitutional reality of Article V. Regarding the latter, a modicum of legal history is in order. Until 2008, the Supreme Court had uniformly interpreted Amendment II to allow states and municipalities to impose reasonable constraints on gun ownership whether at home or in the public domain. However, in that year a Supreme Court decision commonly known as Heller, first interpreted Amendment II to permit retention of firearms at home for self-protection, without restraint or qualification. Moreover, from 1994 to 2004 Congress also was successful in resisting Constitutional challenges to its legislation banning possession of assault-type weapons. This law thereafter expired by its terms and was never extended.
Since 2008, proponents of expanded gun rights have sought to overturn multiple state and local laws curbing both the carrying of weapons outside the home as well as the kinds of weapons to be allowed. Both trial, as well as appellate courts construing the Constitutionality of such circumscriptions, have overwhelmingly found them to be constitutionally compatible with Amendment II, and that Heller remains limited to only home possession of firearms for self defense. Moreover, in multiple attempts to seek Supreme Court review of these limiting decisions, the Court has declined to do so in all instances.
Assuredly, one may likely anticipate a future appellate decision that indeed grants the “wish list” of the NRA, wholly or in part. So doing would give rise to a Constitutional controversy likely sufficient to warrant interjection and resolution by the Supreme Court…but do not anticipate that a successful victor in the race for the presidency next month having claimed an ability to “preserve your Constitutional rights” will be able to individually assure other than an altered Constitutionally flawed perception of Amendment II.
Irving Labovitz, J.D. is currently teaching “OBJECTION! Current, Contentious and Confusing Legal Battles” on Thursdays-Oct, 13, 20, 27; Nov. 3, 10, 17; Dec. 1, 8; No class on Nov. 24. The class starts at 12 p.m.
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Article 2 was granted by our Founders for the express purpose of self defense because law enforcement of any kind did not exist.Their genius is beyond comprehension to say the least but common sense in the 21st century must replace the extremism of the NRA and it’s followers. Automatic assault weapons did not exist when Article 2 became law. They are weapons of war and not for domestic self defense as such they must be banned from every avenue of sales, gun shows,stores and the internet in my humble view !
There is nothing in the Second Amendment that deals with the issue of self-protection. It deals with militias at a time when we had no formal army. The Constitution also gives Congress the authority to issue “Letters of Marque” to authorize private vessels to be armed and conduct military activities, because there was no Navy at that time. We need a new Constitutional Convention that eliminates the Second Amendment and lets the states and local communities regulate gun ownership as may be suitable for that community.