Guest commentary: Gun Control, the Second Amendment and Your Natural Rights

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By Eugene R. Milhizer President and Dean

Ave Maria School of Law

As a consequence of the recent tragic and well-publicized events involving gun violence in Newtown and elsewhere, there arises an understandable urge, especially on the part of some legislators, to do something about it. Carpenters try to fix problems with hammers and lawmakers try to fix problems with new laws. And so, predictably, new legislation relating to gun ownership is now being vigorously debated.

It is important to step back from all the posturing and bluster and recognize that gun regulation is different in kind from regulations addressing other potentially dangerous products and activities, such as jet skis, bungee jumping and poisons.

The right to bear arms enjoys a special constitutional protection, and thus we should be especially circumspect when considering legislation that might burden that right. When evaluating the limits of Second Amendment protections, it is important to consider the amendment’s origins and scope.

In 2008, the Supreme Court issued the landmark decision in Heller v. District of Columbia. Justice Antonin Scalia, writing for the majority, held unambiguously for the first time that the Second Amendment guaranteed an individual rather than a collective right to keep and bear arms.

Quoting Blackstone, Justice Scalia referred to a “natural right of resistance and self-preservation” and “defense” that pre-existed the Constitution. Scalia traced the origin of these rights to the English common law.

While Scalia was correct insofar as he recognized that the right to keep and bear arms was an individual right that predated the Constitution, his conclusion that the right was traceable exclusively to the common law is overly narrow. The Framers, just as the common law, recognized a natural right to self-defense. This natural right predates and undergirds both the common law and the Constitution’s Second Amendment. Indeed, as self-preservation and self-defense are natural rights, they are neither bestowed by the government nor may they be ceded to it.

Of course, in a civil society the exercise of natural rights is not absolute. Their exercise may not unduly infringe on the natural and constitutional rights of others. For example, freedom of religion cannot shield human sacrifice, nor can freedom of speech excuse shouting fire in a crowded theatre.

The respectful interplay of protected liberties is among the objectives the Framers addressed when crafting the Constitution, and this objective should inform contemporary legislators when they engage in law making.

It would be imprudent and even immoral to seek a pragmatically beneficial end, no matter how well intended, if the means of achieving it requires unduly burdening a natural right that enjoys express constitutional protection.

So as lawmakers consider gun control legislation, they must remember that they are not regulating jet skis or bungee cords. They must conform any new legislation to the Second Amendment right to keep and bear arms, which is ultimately derived from the natural law rights of self-preservation and self-defense.

Consistent with these first principles, legislation can surely be crafted to keep guns away from criminals and the mentally ill without disregarding the inalienable rights of law abiding citizens. All responsible lawmakers should join together to seek this proper goal.

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