Gun Control v. The Second Amendment

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.

U.S. Const. amend. II.



GUNS REDUCE CRIME from Intelligence Squared U.S. on Vimeo

Dedication

In light of recent tragic events in America involving gun violence, I dedicate this post to the memory of the fallen. This is also dedicated in honor of the survivors within their families and communities, and all other mourners. Additionally, and of equal importance, I dedicate this to all who sacrificed, fought, and perhaps gave their lives to secure our legal rights in America.

Introduction

Recent events have focused our national attention on gun ownership. Like any controversial topic, gun ownership in the United States comes with strong opinions and emotions on all sides. Thus, one may reasonably anticipate emotions to play a role in debating and considering gun rights. Nevertheless, one must expect all participants to apply intellect and resist emotional positions.

Debate

The debate about whether guns reduce crime features a panel of six individuals. Panelists arguing for the motion are: Stephen Halbrook, Gary Kleck, and John R. Lott. Panelists arguing against the motion are: John J. Donohue, Paul Helmke, and R. Gil Kerlikowske.

Irrespective of one's opinion about gun control in general, and the relationship between gun ownership and deterrence, this debate brings out many important points to consider about these topics. In addition, it provides evidence that will either bolster or obliterate some of the various talking points that may come up in discussions about the issue of gun ownership.

Update

In one update on the Intelligence Squared debate, panel member Paul Helmke interviewed author Craig Whitney on C-SPAN on December 5, 2012. Unlike a debate where adversaries challenge questionable assertions to expose faulty reasoning, the interview setting provided Helmke with a platform to espouse a one-sided point of view. Helmke appears to convey his opinions through his demeanor and in the form of his questions. For these reasons, anyone watching the C-SPAN interview would do well to recognize Helmke's biases prevent him from fulfilling the role of an objective interviewer.

Notably, however, Craig Whitney spoke about the historical background for the Second Amendment, and he endorsed the holdings in Heller and McDonald. Similar to the United States Supreme Court, Whitney's independent research supports the proposition that the right to own and carry weapons is an individual right. To the extent Whitney criticized the Heller opinion, his comments indicate he interpreted the opinion differently than I.

To begin, the right to own and carry weapons predated the Second Amendment. Thus, the Second Amendment did not establish anything new. Instead, it preserved a right enshrined in English common law to own and carry weapons for self defense, among other things. Therefore, Whitney explained during this interview how his research lead him to the same conclusion as the Supreme Court's opinion in Heller.

Whitney, however, pointed out what he believed to be a contradiction within Heller based on word usage. Whitney described how Heller may lead one erroneously to conclude the Second Amendment “conferred” the right to own and carry weapons. According to Whitney, this directly contradicted Heller's proposition that this right predated the Second Amendment. This apparent difficulty, however, is easily resolved based on a natural reading of Heller. To be more succinct, this is a red herring.

Next, Whitney took issue with the court's view that the Second Amendment relates to the right of self defense. As a basis for this criticism Whitney relied on Second Amendment text and the record of the Second Amendment debates during the Constitutional Convention.

This may demonstrate Whitney's failure to understand and appreciate Originalism in constitutional analysis. Without getting into a side-show on the topic of Originalism, it is proper for a court of law to resort to the common law in addition to the record from the Constitutional Convention. One may call these extrinsic sources “circumstantial evidence of the Framer's intent.” Indeed, it would be more bizarre for a court of law to render an opinion of law without considering the law.

Nevertheless, the C-SPAN interview is helpful because Whitney provided a historical background for the Second Amendment similar to Heller. Anyone who watches the C-SPAN interview, however, should consider Helmke's and Whitney's opinions with skepticism and, at the very least, disregard Whitney's criticisms of Heller.

Please click here for Paul Helmke's interview with Craig Whitney.

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Second Amendment Attorney Michael A. Smolensky, Esquire on the World Wide Web.