The Limits of the Second Amendment in Instances of Self-Defense
On the night of October 1, 2017, Stephen Paddock open-fired onto a crowd of concertgoers in Las Vegas, Nevada using an AK-47 rifle and 23 other guns with calibers ranging from .223 to .308. The guns used in this massacre, which left 58 people dead, were fully legal in the state of Nevada.[1]
The right to bear arms is enshrined within the Second Amendment, which officially states that “a well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” While interpretation varies, the Supreme Court has held that the Second Amendment “guarantees an individual right to possess and carry weapons in case of confrontation,”[2] and that these rights are “fundamental to the Nation’s scheme of ordered liberty,” and “deeply rooted in the Nation’s history and tradition.”[3] However, it can be argued that despite its application to the States, the Second Amendment should not be interpreted as a fundamental liberty that provides an unlimited right to self-defense.
McDonald v. Chicago officially incorporated the Second Amendment into the states, yet the case built on the 2008 Supreme Court decision of District of Columbia v. Heller. Prior to the ruling, provisions in the District of Columbia Code prohibited the registration of handguns and required owners of registered firearms to keep them nonfunctional unless being used for legal recreational activities.[4] After review, the Supreme Court held that a ban on registering handguns and the requirement to keep guns nonfunctional violated the Second Amendment.[5] In the majority opinion Justice Antonin Scalia wrote that an interpretation of the Second Amendment that limited gun ownership to the military would be the exact type of rule that would warrant the need for citizens to own guns in the first place. Scalia argued that the amendment should “guarantee an individual right to possess and carry weapons in case of confrontation.”[6] Therefore, requiring handguns to be nonfunctional in the home inhibits a person’s right to carry weapons in the case of confrontation or self-defense, violating the Second Amendment.[7]
The Court’s ruling in District of Columbia v. Heller applied only to federal gun regulations, as D.C. is a federal municipality. However, after the Heller ruling, several suits were filed challenging local state gun bans, arguing that the Heller holding should apply at the state level as well. In a landmark decision in 2010, the Supreme Court held that the right to bear arms for the purpose of self-defense as outlined in the Second Amendment does apply to the states.[8] As recognized in Heller, the right to bear arms is a “fundamental” and “deeply rooted” right.[9]
However, despite the notion that the right to bear arms is a fundamental right, the holdings in both Heller and McDonald make it clear that the Second Amendment’s incorporation does not ban all types of regulations on gun ownership. Writing for the majority in McDonald, Justice Samuel Alito wrote, “We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘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.’ … We repeat those assurances here.”[10] Justice Alito continued to write that “Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”[11] Although the court has stated through Justice Clarence Thomas’ concurring opinion that “the right to keep and bear arms was essential to the preservation of liberty,” by still allowing certain gun regulations the Court has essentially opened the door to future legal gun restrictions.[12]
The assurance that incorporation “does not imperil every law regulating firearms” is a necessary statement for lawmakers to keep in mind when considering the legality of new gun regulations in the wake of deadly mass shootings such as in Las Vegas in October of 2017 or in Texas in November of 2017. The 1994 Federal Assault Weapons Ban expired in 2004, making the purchase of the guns used in the Las Vegas shooting legal.[13] The guns used in Las Vegas, including an AK-47 rifle, and 23 additional guns with calibers ranging from .223 to .308 were all purchased legally, given that Nevada has no laws regulating assault weapons or large capacity ammunition magazines.[14] Not only are assault weapons, fifty caliber rifles, and large capacity ammunition magazines legal, but the state also does not require firearm owners to register their firearms, obtain a license for their firearms, or prosecute individuals for failing to conduct background checks.[15] There is no limit on the number of guns that an individual can own, and since there are no waiting periods, registration, or licensing necessary for the purchasing of firearms, large scale ammunition and gun purchase buildups go largely unnoticed by state and federal authorities.[16] When a buildup of guns as massive as this is used with such a nefarious motive, it is difficult to justify Stephen Paddock’s ownership as “self-defense” or “essential to the preservation of liberty” as articulated in McDonald.[17]
In the wake of constant and devastating mass shootings, the dissenting arguments presented in both Heller and McDonald deserve to be considered. Taking issue with the argument that the Second Amendment fundamentally allows guns for self-defense, Justice John Paul Stevens wrote in a dissenting opinion within Heller that the Second Amendment protects the right to keep and bear arms for military purposes, and in the absence of military related ownership, regulation should be allowed.[18] Later, in a dissent to the decision in McDonald, Justice Breyer argued that contrary to the majority opinion, the Second Amendment has no text that characterizes the right to bear arms as a “fundamental right.”[19]
Despite the Second Amendment’s application to the states, the right to bear arms should not be interpreted as a fundamental liberty attached to the unlimited right to self-defense. Given the lethal effects of unregulated gun ownership as evidenced in Las Vegas and across the country every day, further gun regulation is necessary. However, the majority of regulation has been deemed unconstitutional by Heller and McDonald, because of its characterization as a fundamental right. Therefore, as supported by Justice Breyer in Heller, the Court must adopt some type of interest-balancing test for determining when government interests substantially and sufficiently justify regulation.[20] Without federal and state regulations related to the purchasing and usage of firearms, gun-related violence will never cease.
[1]"Nevada State Law Background." Giffords Law Center to Prevent Gun Violence. November 16, 2017. Accessed November 19, 2017. http://lawcenter.giffords.org/gun-laws/state-law/nevada/.
[2] District of Columbia v. Heller, 554 U.S. 570 (2008).
[3] McDonald v Chicago, 561 U.S. 742 (2010).
[4] District of Columbia v. Heller, 554 U.S. 570 (2008).
[5] District of Columbia v. Heller, 554 U.S. 570 (2008).
[6] District of Columbia v. Heller, 554 U.S. 570 (2008).
[7] District of Columbia v. Heller, 554 U.S. 570 (2008).
[8] McDonald v Chicago, 561 U.S. 742 (2010).
[9] District of Columbia v. Heller, 554 U.S. 570 (2008).
[10] McDonald v Chicago, 561 U.S. 742 (2010).
[11] McDonald v Chicago, 561 U.S. 742 (2010).
[12] McDonald v Chicago, 561 U.S. 742 (2010).
[13]Paton, Callum. "Open Carry, Concealed Weapons and Machine Guns Are All Legal in the State of Nevada." Newsweek. October 03, 2017. Accessed November 19, 2017. http://www.newsweek.com/las-vegas-gun-laws-open-carry-concealed-weapon-machine-guns-all-legal-nevada-675310.
[14]"Nevada State Law Background." Giffords Law Center to Prevent Gun Violence. November 16, 2017. Accessed November 19, 2017. http://lawcenter.giffords.org/gun-laws/state-law/nevada/.
[15]"Nevada State Law Background." Giffords Law Center to Prevent Gun Violence. November 16, 2017. Accessed November 19, 2017. http://lawcenter.giffords.org/gun-laws/state-law/nevada/.
[16]Criss, Doug. "You Don't Need a Permit to Buy a Gun in Nevada." CNN. October 23, 2017. Accessed November 19, 2017. http://www.cnn.com/2017/10/02/health/nevada-gun-laws-trnd/index.html.
[17] McDonald v Chicago, 561 U.S. 742 (2010).
[18] District of Columbia v. Heller, 554 U.S. 570 (2008).
[19] McDonald v Chicago, 561 U.S. 742 (2010).
[20] District of Columbia v. Heller, 554 U.S. 570 (2008).