January 14, 2013 by David K. Sutton
The Second Amendment Right To “Keep And Bear Arms” Is Not Absolute
Just as other constitutional rights are not absolute, like freedom of speech, the right to “keep and bear arms” is not unlimited. The idea of equally applied rights is not in question here. What is in question is the scope of each right. Where one person’s right infringes upon another person’s right, that is where the line is drawn. Just as there are reasonable limits on the reach of free speech, so too can there be reasonable limits on the arms one can bear.
The First Amendment does not enshrine your right to defame someone else. It is at that point where you have potentially reached the limit of free speech. You are free to say what you want, and without government persecution, but only up to the point where your speech does not infringe on someone else’s rights. Of course there is no hard limit, you can still say what you want, but there could be legal consequences for doing so.
The Second Amendment, which defines a material right as opposed to a civil right, also has limits, but these limits have a different manifestation. The limit on the right to keep and bear arms is not reached at the point where it infringes upon someone else’s rights. An absolutist interpretation of the Second Amendment would allow unlimited ownership of any type of arms available. But we know this is unreasonable, so we accept laws that restrict the purchase and ownership of certain types of arms, and these restrictions have not been judged unconstitutional. Therefore, it is already well established that the Second Amendment right to “keep and bear arms” is not an absolute right. But what is not well established is where we draw the line.
Even the landmark Supreme Court ruling of Heller v. District of Columbia, that upheld the individual right to bear arms, made it clear that this right is not absolute.
“Nothing in our opinion,” Justice Scalia said, “should 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.”
The opinion also said that prohibitions on carrying concealed weapons would be upheld, and suggested somewhat less explicitly that the right to personal possession did not apply to “dangerous and unusual weapons” that are not typically used for self-defense or recreation.
Gun advocates can wage a sincere battle, arguing that increased restrictions on the types of arms that can be purchased will not reduce America’s gun violence. But gun advocates cannot say the Second Amendment guarantees their right to own any and all specific types of hardware. That simply is not the case.