Letter 2 America for January 18, 2013

Dear America,

In virtually any dialectic over an important issue, one particular tactic seems fundamental to the discussion.  The conservative side of the argument in particular, but I'm sure the liberal or progressive side as well, is buttressed by a fundamental assumption that quietly and without notice becomes an indisputable axiom.  That is what has happened in the debate that is raging over the issues related to gun control.  The gun lobby, and the NRA in particular, have posited the notion that it is an inalterable right to "keep and bear arms," as it is written in the second amendment to our constitution, but that just isn't so.

There are arguments that the conservatives and "strict constructionists" have made regarding gun control that may be absurd, but that can be maintained by one as can be any idea.  They are arguments, like "guns don't kill people, people kill people."  Of course that is literally true, but in reality, it is absurd.  Guns are inanimate and thus have no wills and cannot act spontaneously...that is true.  And in the case of gun violence, people are always involved.  But all of that is for naught; it is a red herring.  Though there have been unfortunate instances to the contrary recently, the same can be said of cars and people...that is, cars don't kill people, people kill people.  But that doesn't mean that you can, or should be able to, drive a car on a public highway without a license.  It doesn't mean that we shouldn't put seat belts and anti-lock brakes in them whether you want them or not.  And it certainly doesn't mean that they don't have to be registered.  Analogs of all those things either exist or can be implemented with regard to guns to prevent the vast preponderance of the gun related deaths and injuries that occur in this country with a frequency that causes those in the rest of the world's nations to pale by comparison.  So, as insidious as these specious arguments used by the gun lobby may be, they are not irrefutable by any means.  But the argument they make about their "inalienable right" to keep and bear arms is different, because we are a nation built on the notion that rights are inalienable, but both history and practicality demonstrate that they are not.  Even free speech is not inalienable when it takes certain forms: fighting words, hate speech, commercial speech and speech intended to incite violence are not protected by the first amendment, and the same is the case with regard to any other right provided for by The Constitution, but not without limit.

The method by which we are protected from the dilution of our rights by our legislatures is called "strict scrutiny."  Long ago, our Supreme Court realized that there have to be some limitations to the protection of rights that our government must undertake because sometimes absolute adherence to the provisions of The Constitution create insurmountable problems, and that is the foundation of strict scrutiny.  With regard to the Bill of Rights in particular--that is with regard to the first ten amendments to The Constitution--state or the federal government actions that constrain those rights must bear a necessary relationship to a compelling governmental interest or objective.  Thus, the threshold issue in determining whether a right can be abridged is not the language of the constitutional provision on which it is based, but whether there is a compelling state interest in doing so.  With regard to guns, there are something on the order of 5000 gun related homicides per year in this country.  I think that, therefore, there can be no argument about the compelling need for state action...and by state I mean governmental, including the federal government.  The area in which there is legitimate debate is the hurdle the state must get over after crossing the threshold: what actions can be taken that bear a necessary relationship to protecting the citizenry from gun related homicide in the future, and in this area, there can be shades of meaning and reasonable differences.  But those differences are not based on whether gun owners have the right to own or carry their guns...even in their own homes.  The second amendment right to keep and bear arms is not absolute under the law, and you can even ask Antonin Scalia about that and get the same answer.

So from now on, whenever you engage in discussions about this issue, and since Newtown we have all done so, you have a rebuttal to the claim that the second amendment guarantees the right to own an AR-15 or a 100 bullet magazine for it.  No one has an absolute right to own a device, the sole purpose of which is to take human life, even if it is a gun within the meaning of the second amendment.  And no one has the absolute right to carry a gun into a crowded theater any more than he does to shout fire in one.  So go get 'um, America.  Show them what we are made of.  Show them that the right of innocents to live and breath supercedes the right to play posse comitatus cowboy...even under The Constitution.

Your friend,

Mike