Let's Have A Conversation About The 2nd Amendment

Published 1:53 pm Thursday, January 3, 2013

Much has been written and said regarding the Second Amendment of the United States Constitution in recent weeks. More words are coming as Congress considers whether or not to take action regarding assault weapons in response to the massacre of innocents in Newtown, Connecticut.

Many of those words will demonize and inflame.

Many of them intentionally.

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Those words will do no more than polarize and solidify already-held positions, without getting either side of the issue to consider alternative thoughts with an open mind. Some don't believe there should be a conversation, feeling the Second Amendment doesn't allow for the consideration of any limitation on purchase and possession of firearms. Others hold a contrary opinion. I have family, friends and colleagues on both sides of the debate and their position on guns and the Second Amendment does not affect my regard for them. Nor should it. I'd like to think we could all get together and have a civil conversation about the Second Amendment without damaging those relationships.

The First Amendment to the Constitution grants us free speech so a conversation on the issue is certainly legal and I personally believe a conversation is justified.

Let's place the Second Amendment on the table:

“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.”

That's it.

“Shall not be infringed” is the key phrase for many people, just as those guarding the First Amendment point toward its language stating that “Congress shall make no law…abridging the freedom of speech…”

Shall not be infringed.

No abridging.

Twin pillars, seemingly.

A point that occurred to me as I considered this debate is to remember the Second Amendment was written at a time when the “arms” referred to by the Constitution were flintlocks, a weapon that bears little or no resemblance, in terms of firepower, rate of fire, and lethality, to the assault weapons that can be legally purchased in the United States today. Those who gave us the Bill of Rights were great visionaries and no doubt possessed a fine imagination, but it is hard to imagine they could have dreamed of the day when such weapons, such firearms, would exist and be open to ownership by the nation's citizens.

A soldier in the Continental Army who was practiced at the flintlock rifle could be expected to fire three to four shots a minute. Had someone gone into a school armed with a flintlock rifle at the time the Constitution was written they would have gotten one shot off, and only one shot off, most likely, before being overpowered and disarmed while trying to reload.

I could find no historical accounts of such attacks on a school, but, clearly, the nation into which the Second Amendment was born was not so steeped in the culture of deadly violence for entertainment and pleasure as ours is today.

My own belief is that our Founding Fathers would have no difficulty with us having a conversation about the possibility of implementing certain restrictions on the sale of certain firearms, in light of technological developments in weaponry that have created such lethality able to fit into the hands of single person. One person now has access to lethal firepower exceeding what an entire militia would have possessed when the Second Amendment was written.

There is room, in my personal opinion, for our nation to have a conversation about this and consider what might be done to ensure that people continue to have the right to keep and bear arms but without necessarily being legally able, as an individual, to possess more lethal firepower than George Washington's Continental Army.

What, you ask, about that phrase “shall not be infringed”?

Well, consider the phrase “no law…abridging the freedom of speech.”

The United States Supreme Court ruled unanimously in 1919 that distributing fliers that opposed the draft was against the law and that such free speech could be abridged because it presented “a clear and present danger” to our nation.

There is free speech, but up to a limit.

“The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic…The question,” wrote Supreme Court Justice Oliver Wendell Holmes, Jr., “in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

The same argument and principle can be made and applied to assault weapons and the Second Amendment.

And we should have a civil conversation about that.

Yes, a 1969 Supreme Court decision revisited the First Amendment ruling of 1919, narrowing, but affirming, free speech limits. Speech can be banned, the Supreme Court ruled, if it is likely to incite imminent lawless action.

I understand that no ban on any weapon will clean the human mind of the desire to commit mass murder, but if we provide such a mind with less devastatingly lethal firepower we will limit the loss of life.

Achieving that goal would help, in the words with which the United States Constitution introduces itself and justifies its very existence, “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity…”

To “ourselves and our posterity” means for us and our children and for their children, for everyone's children and grandchildren, from Connecticut to California.

And there is nothing unconstitutional about that.