The Limits of Second Amendment Rights
posted at 2:35 pm on January 20, 2011 by Jazz Shaw
As predictable as clockwork, the recent shooting in Arizona has once again brought forth an eclectic coalition of opportunists who want us to know – in the most reverent and mournful tones possible – that perhaps the aftermath of this atrocity is the ideal time for a calm, reasonable, national discussion on gun control. Except we’re not supposed to say gun “control” this time. That sounds a bit too gun-grabby and pushy to the modern conservative mind. No, these days we’re supposed to say, “gun restrictions.”
Who could be upset over a few sensible, proactive “restrictions,” eh?
The chosen first line of attack this year is coming in the form of limiting the capacity of the clips for semiautomatic handguns. And it’s being brought up by a diverse range of voices from Michael Isikoff to Dick Cheney. (For the record, I know that many of you object to the use of “clip” in this context, preferring the more technically accurate “magazine,” but clip has fewer letters in it, so bear with me if it slips in here and there.)
The argument goes something like this:
Look ,nobody is trying to take your guns away. We’re on board with you there, brother! The Supreme Court has ruled that you have an individual right to own a gun. But all rights have limits, you know? I mean, you can’t yell “Fire” in a crowded theater. And besides, nobody really needs a clip that holds thirty rounds unless they’re hunting humans, do they? We can limit the body count in cases like this by simply reducing the capacity of the magazines. That’s not so unreasonable, is it?
Unfortunately somebody has to be the bad guy here, so I’ll field the question. Yes. Yes, it is completely unreasonable. And furthermore, this is precisely the wrong time to be having this discussion. You’re only doing it now because politicians tend to get a bit gun shy (if you’ll pardon the phrase) at times like this and fidget around, not wanting to look too gun happy. But since you took the time to ask, I’ll sit down with you here and try to explain why that is.
There are two related but equally dangerous problems with this argument. The first is whether or not there is a “need” for people to have a high capacity magazine which holds 30 or more rounds. (And this is one argument which even Ed Morrissey seemed willing to give some ground on in the article linked above.) I’ll grant you that the number of scenarios where it might be useful is limited indeed. You’ll never get that many shots at any game animal you’re hunting and a Glock is really a fairly useless weapon for hunting to begin with. And you’re never going to be in that much of a rush to get off such a large number of rounds in conventional target shooting competition.
But I can think of one – hopefully very rare – situation where it might come in handy. That would be in a home defense situation where you’re facing multiple armed assailants. Granted, with a lot of practice you can switch out a clip on a handgun in a few seconds, but not everyone has that skill. (I’ve actually experimented with this in the past, and under ideal conditions I can do it in about four.) The point here, though, is that it isn’t totally inconceivable that somebody might run into a use for it.
But that is actually a far less important consideration than the second point of the argument. The real question here is whether or not the need to be able to fire that many rounds constitutes sufficient grounds, and if the government could or should mandate such a limitation on that basis.
There is no end to the list of things Americans may not need to do. You don’t really need to be able to dance in a public park. Let’s face it, there are plenty of other ways to express happiness. And as far as physical training goes, you could always just do calisthenics. Further, as some nanny state enthusiasts might reason, the possibility exists that while dancing in a public park, you might fall down and hurt yourself. Even worse, your clumsy frolicking could lead you to fall down and hurt someone else. But does that lack of need and potential self-injury provide grounds for the federal government to prohibit dancing in national parks? Where in the Constitution are we to find that power granted to them?
The point being, a lack of need for someone to perform a given activity does not automatically make a constitutionally sound argument in favor of government regulation. And if we were to give ground on this admittedly rational sounding argument – that the vast majority of Americans would never need a 30 round clip – then you have just established a very dangerous precedent.
What if the next argument comes in the form of the Gentleman from Vermont saying that 30 was too low of a bar, and perhaps 20 was more in line with our “needs?” It’s only a short hop from there to saying that only single shot weapons are required with each round needing to be manually expelled and replaced directly into the chamber.
“Hey, we’re not taking away your guns. That’s your right! We just don’t want you firing more than one shot at a time.”
I normally don’t care much for slippery slope arguments, but this is one where I’ll gladly jump on board. Giving the federal government the right to limit the capacity of magazines to any number of rounds concedes their right to limit the capacity to any number of rounds, including one. Or, perhaps, zero.
All of this brings us back round to the question of when it is proper to limit some of our constitutional rights. But you need to remember that there is a vast difference between using free speech to openly express your views and shouting “Fire” in the hypothetical theater. The latter is not an expression of opinion, but rather a deliberate attempt to cause mayhem and injury to other citizens. And while possessing a high capacity magazine might make it easier for a deranged psychopath to cause injury, simply possessing it is not a crime. The fact that you posses a tongue renders you capable of yelling Fire in the theater. Shall we cut out all of our tongues to ensure they are not used maliciously?
Look, you’re not reading this from some die hard, 2nd amendment absolutist. I have long held that there are constitutionally viable limits on the types of weapons the average, law-abiding citizen should be able to own without violating the vision of the founders. I feel there is a difference between guns – or “arms” – and military weapons of war. I don’t feel that every citizen is entitled to a shoulder-fired Stinger missile. (And believe me, I’ve actually had some NRA members argue with me over that one.)
But our right to keep and bear arms is beyond question. Giving ground on something like magazine capacity – particularly during a stressful time as this, when defenses against governmental restriction are low – is a fool’s errand. The Arizona shooter was a madman, and we must always support law enforcement’s efforts to protect us from the violent and deranged. But not at the cost of our personal freedom.
Now you can yell at Jazz for being a stupid, wrong-headed RINO even faster than by leaving a comment. Follow him on Twitter! @JazzShaw