Friday, September 2, 2011

Gun Rights and Regulations

There is an interesting article in this month's Atlantic, by constitutional law professor Adam Winkler, that reminds us of the shifting positions of right and left on the issue of gun control. In the modern history of this issue, it seems it was the Black Panthers who were the strongest proponents of the right to bear arms, while conservative politicians during the years of black power militancy and urban rioting, including then-Governor Ronald Reagan, were all for restricting the right to carry weapons. Nowadays, by contrast, we associate the most ardent gun rights advocates with right wing groups.  Winkler's article also points out that the NRA wasn't always so strongly against regulation of gun ownership. Up until the 1970's, the NRA supported gun registration and permit requirements, as well as restrictions on who could buy a gun.

Perhaps most importantly, the article suggests that we have been having the wrong debate about gun rights and gun laws. In recent years, we have focused a lot of attention on the meaning of the Second Amendment, in particular whether it should be read to confer an individual right to own weapons. That argument may never have been as important as people think it is, in part since the vast majority of state constitutions already support an individual right to gun ownership. Anyway, those who support stricter gun regulation have lost that argument in the Supreme Court, but they may also have lost sight of the fact that even if there is a constitutional right to own guns, that does not even begin to answer the question of what types of regulations may still be imposed on that right. In that regard, the article closes with a quote from Justice Scalia, author of the Heller decision, who said that nothing in that case, which holds that the Second Amendment does indeed confer an individual right to own guns, should "be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Since the debate about rights may be closed, we should instead be having a debate about reasonable regulation of firearm sales and use. In that debate, it might be useful to remember that today's advocates of unrestricted gun rights were not always so anti-regulation, as they have greatly changed their tune since the days when it was the Black Panthers who walked the streets with loaded shotguns.

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