Kaeder has been a trial lawyer in San Diego County for 39 years and is a former chair of the San Diego County Democratic Party, and lives in downtown San Diego.
Do you have the right to a gun? Yes. A constitutional right? No.
Fealty to the American myth of unrestricted gun ownership has run its course. Too many children have died. Try a lawyer’s perspective instead. You have the right to own a gun, but it’s not a constitutional right. Politicians beholden to the National Rifle Association bloviating about the liberal elite coming to take our guns in violation of our “Second Amendment constitutional rights” are nauseating. Shut up, Sen. Ted Cruz. No one believes that.
Why not first read the Second Amendment? It says, “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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The Supreme Court ruled in 1883 in Montclair v. Ramsdell that a cardinal rule of statutory interpretation is that courts should “give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.” That basic rule of interpretation is followed by every court in every state. More recent application of the principle in Hibbs v. Winn in 2014 is that statutes should be considered “so as to avoid rendering superfluous” any statutory language: “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”
Returning to the Second Amendment, giving effect to every clause and word, its obvious purpose is to assure that there is a “well regulated Militia.” Notice that the entire amendment is never quoted by hyperventilating right wingers fuming about constitutional rights. Carrying their logic to its extreme, if there is no limitation on the right to own a gun, all 330 million citizens of the United States must be part of a “well regulated Militia.” Are you? I’m not.
If we are all not part of a “well regulated Militia,” then what does the Second Amendment mean? Perhaps only what it says. A “militia” is a military force that is raised from the civil population to supplement a regular army in an emergency. That sounds like it could be the National Guard. Whatever that is, unquestionably, it’s not everyone in the country. Of course, in District of Columbia v. Heller in 2008, the conservative majority of the Supreme Court, in an opinion written by arch-conservative Justice Antonin Scalia, decided that “well regulated Militia” was merely “prefatory” language that meant nothing despite 150 years of Supreme Court precedent to the contrary. Dissenting Justice John Paul Stevens called it “unquestionably the most clearly incorrect decision” of his lifetime.
But you do have the right to own a gun. Why? Because you have the right to own property. So, for instance, everyone has the right to own a television, a couch, a kitchen table and chairs and a house to put them in. But are there any limits on your right to own property? No one would seriously argue you have the right to own a land mine or a nuclear-armed submarine. Yet you do have the right to own property, both “personal” (think things you can move) and real (think things you can’t move, like land). The right to own property arises from the Fifth and 14th Amendments’ due process clauses and, more directly, through the Fifth Amendment’s takings clause: “nor shall private property be taken for public use without just compensation.”
Consider a gun, any type of gun, in its barest essence. It is a piece of property. You have the right to own property. The right to own property is constitutional. But not any property. The fundamental constitutional proposition many Republicans overlook is that no right is unlimited. That there is a limitation of our rights is fundamental to being civilized. So, for instance, the Supreme Court long ago held that your right to self-expression stops at the tip of the other guy’s nose. You have the right to own a car, but you don’t have the right to drive it at 100 mph through Downtown San Diego.
You do have the right to own a gun, but you shouldn’t have one that can kill dozens so quickly. Just like the state can require you to have a license to drive a car by being a certain age and demonstrating competence with driving skills and regard for public safety, so, too, the state can place reasonable limits on property ownership, such as guns. There is no legitimate purpose to own a semi-automatic rifle, any more than you should be able to own a ballistic missile. And that’s all there really is to it. You can own a gun, as many as you like, but the type can be limited for the safety of others. Mass shootings could so easily be made a thing of the past.