Vail Law: Is it finally time to reinterpret the Second Amendment? (column)
February 20, 2018
We've been over this ground before, this killing ground.
So, I ask: Tell me what works? Don't tell me what you think won't work; tell me what does. Because clearly what we've been doing with unfettered gun rights isn't working. No, what we're doing is being paid for in lives, too often young lives.
Any thinking person must admit that the Second Amendment was, is and will be open to interpretation. That is precisely what the Founding Fathers intended.
Most of the Constitution is as spare as a skeleton. It is meant to be fleshed out in the context of our times. How can anyone expect the 4,543 words of the Constitution to anticipate and settle all eventualities of human endeavor, especially when the Constitution represented compromise among various factions with radically different agendas?
The Second Amendment assures only this: "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."
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Not the individual
It does not speak to automatic weapons, as none existed or could be conceived of at that time.
It does not speak to bump stocks, does not address superannuated notions of courtly warfare, does not imagine the hatred of mass shooters turned inward against the people. What it speaks to — and speaks to solely — is the self-defense of the nation (not the individual) at a time when nationhood was nascent and our militia was our hedge against external powers and their aggression.
Nowhere does the Second Amendment state or even intimate that an individual may bear arms for the individual's sake.
Yes, I am aware of what the Supreme Court has said on this issue. I know all about Cruikshank, Presser, Miller and Baldwin, each in its own way affirming the right of an individual to bear arms.
Yes, I know that in 2008, in District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia. And while I respectfully disagree, the Second Amendment is not the problem.
The problem lies in what we make of it.
I believe there is a time and place for self-protection. In the rural backwaters of this country, where a call to law enforcement might take half an hour or more, a person should have the right to protect her home and person. Despite my own aversion to red meat, I support the rights of sportsmen.
But this bacchanal of senseless killing must stop. Was Sandy Hook enough? Isla Vista? Aurora? Las Vegas? Marjory Stoneman Douglas High School? So many more, you have forgotten them if you had even paused to pay attention.
I, for one, do not buy the "slippery slope" objections advanced by the National Rifle Association and others. Reasonable regulations on private ownership of weaponry will not lead to Constitutional perdition. There are reasonable restraints and regulations on nearly every aspect of American life.
Requiring a driver's license has not led to the confiscation of your Camry. Mandating voter registration has not chilled your right to vote. Universal background checks, limiting ownership of assault weapons, closing the gun show loophole, banning bump stocks and other common-sense restrictions will not unreasonably impair the Constitutional protections.
Might it not be time to reconsider the Second Amendment? Might our rights be marginally infringed? Perhaps. But, ask yourself, on balance, how that compares to a 14-year-old's right to come home from school or a concertgoer's right to enjoy a music fest without earning a bullet.
So I ask again; what works?
In Australia, weeks after a man killed 35 people with a semi-automatic weapon in 1996 in Port Arthur, Tasmania, they enacted sweeping gun-control measures. In so doing, the country and its states began banning rapid-fire guns and even offered to buy the prohibited firearms.
In 2016, the University of Sydney published a study in the Journal of the American Medical Association that concluded that Australia hadn't experienced a fatal mass shooting — one in which five or more people were killed — in the 20 years since the '96 shooting. In the 18 years prior, there had been 13 such shootings in Australia.
So that seems to work.
Don't tell me it's a mental health problem. Of course it is. Who in their right mind would shoot up a classroom, theater or church of strangers. But every nation has mental health problems, and no one bloodlets like the USA.
David Hogg is 17 and a survivor of the latest killing spree, this time in Florida. "We're children," the senior said on CNN. "You guys are the adults. You need to take some action and play a role. Work together. Come over your politics and get something done."
Out of the mouths of babes.
This is doable if it's want we want to do it. If not, then this is what we get, what it seems that we deserve, again and then again and then again.
Law in general — and the Second Amendment in particular — is a matter of interpretation.
Time for reconsideration.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.