Do you think it is permissible to yell “fire” in a crowded movie theater in order to create a panic? How about whether it is legal to speak to a crowd and tell them to go out and shoot the first police officer they see, or homeless person or teacher?
If you responded no to those questions, does that make you an opponent of the First Amendment and its ban on laws that abridge the freedom of speech? The answer to that question is, of course, no.
The Supreme Court has long recognized that even a right as critically essential to our democracy as our freedom of speech is not absolute, and speech can be regulated if it poses a clear and present danger among other reasons. While virtually everyone accepts such a commonsense limitation on the First Amendment, there are those who argue that anyone who proposes limitations on the possession of guns is an opponent of the Second Amendment’s right to bear arms.
Similar to the freedom of speech, the right to bear arms is not unlimited, as made explicitly clear by the two most pro-gun cases decided by the Supreme Court. Those cases, District of Columbia v. Heller and McDonald v. the City of Chicago, held that the Second Amendment is an individual as well as collective right and that its protections apply to state as well as federal laws.
Both of those opinions and the numerous lower court decisions based on those cases however have declared that the right to bear arms is not unlimited. Accordingly, courts have approved many different types of reasonable laws that limit the possession, sale and use of weapons.
I thought of this when coming across reports in The Sun detailing two Baltimore shootings and comparing them to an attack in Colorado a few days earlier in which eight people were wounded. In the Baltimore shootings, unsurprisingly both victims died. In Colorado, the perpetrator undoubtedly was trying to kill his victims as evidenced by the several counts of attempted murder he was charged with and the fact that he stabbed one victim 20 times. The life and death difference between the Colorado and Baltimore crimes is that the weapon in one case was a knife and in the other a gun.
One of the slogans traditionally used by the NRA and other proponents of reasonable limitations on guns is that “guns don’t kill people, people do.” This suggests that the instrument chosen by the criminal does not matter. But of course it does, as demonstrated not just by comparing the results of the recent Colorado and Baltimore crimes, but by reflecting on the incredible human tragedies caused by the assault weapons used in the 2017 Las Vegas massacre or other murders and terrorists incidents too numerous to enumerate.
So let’s be clear. Reasonable laws limiting the possession and sale of certain guns are clearly not violative of the Second Amendment. Such laws include but are not limited to those banning weapons, such as the AR-15 designed for combat, not self-defense or hunting, and requirements that sales at gun shows, as with those at gun stores, should require background checks before the sales are completed. Yes, that might result in some delay and paperwork, but such is a reasonable price to pay to prevent felons and terrorists from purchasing weapons of death.
What we hear about less often, except from pro-gun groups on the fringe, is the emotional reason why gun laws are opposed by some. There seems to be a belief that citizens need firearms to protect them against our government, an argument hearkening back to the American Revolution. Sorry, but it does not work that way anymore. Taking arms against the government is not going to, and should not, happen.
We have a government of laws, an independent judiciary to interpret and compel obedience to those laws and institutions that will survive even the current president. Any future American revolution will come about through the ballot box, not the gun.
As with other constitutional protections, the right to bear arms is not absolute, and as with these other protections, the Second Amendment is not incompatible with reasonable limitations. Let us argue about the nature and the reasonableness of these laws as we do with other proposals and not be bogged down with illogical interpretations of the Second Amendment.
Lives depend upon it.
Steven P. Grossman (sgrossman@ubalt.edu) is the Dean Julius Isaacson Professor at the University of Baltimore School of Law.