Congress shall make no law abridging the right of people peaceably to assemble.
First Amendment to the United States Constitution.
Though I am not a constitutional scholar, I am a lawyer with 21 years of experience, including teaching law. I believe I can fairly deal with straightforward constitutional issues.
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In general, freedom of assembly is a First Amendment right guaranteed in the U.S. Constitution.Â
That being said, the right – like any other right granted by the Bill of Rights – can be limited by a local legislative authority through the legitimate use of its police powers, and congress can also limit it, and has. Examples of laws which limit freedom of assembly are found in various riot acts, unlawful assembly laws, and ordinances prohibiting the blocking of sidewalks. Often you are required to get a permit to have your protest. Which is fine with me.
Hence, the constitutional right to assemble peacefully, as well as your right to speech and worship do not include the privilege of exercising such rights on private, undedicated, property, against the will of the owners, nor certain dangerous acts limited by reasonable police power.Â
We all know the second amendment near verbatim. It includes the clause referring to a well-regulated militia being necessary … blah blah, the Supreme Court has largely read that part out of the Second Amendment, and for now, so will I.
However the Supreme Court has not made the Second Amendment a personal freedom beyond the reach of the state or local governments, nor have they stated that congress is any more forbidden from reforming gun laws than congress is “forbidden” from abridging the right to assemble.
What is a personal freedom? One that cannot be abridged by congress. Congress can and does make the possession of firearms a serious crime for all who have committed a prior felony. True, some states have put in place laws that grant a process to reacquire 2nd Amendment rights. But your state’s grant will not matter in the least should you find yourself in front of a federal judge. Please just trust me on this, I have run against that brick wall many times representing others. One got three years prison on the possession alone. He was a prior felon.
Thus, the 2nd Amendment is not a “personal freedom” because you cannot lose “personal freedoms” for life. You do not lose your 4th Amendment right to unreasonable searches. You complete all probation, parole terms, but once completed you have full Fourth Amendment rights. Nor do you lose your Fifth, Sixth, Eighth, Ninth, Fourteenth and – no – not your first amendment right, either. These are “personal freedoms” that a prior felon cannot lose.
But they automatically lose their Second Amendment rights for life under the U.S. Code.
So, having established that Congress most certainly can abridge your Second Amendment rights when necessary for reasonable police power, we now are in a place where we can put that up against our First Amendment rights.
Both the First Amendment and Second Amendment apply to laws directed at public property, not private property. The Supreme Court has already stated that the State cannot outlaw firearms in someone’s home. But even in that case, Justice Scalia (of all people) noted that this did not mean that Congress could not prohibit the sale, transfer, nor caliber of certain weapons.
We arrive at our answer. Congress cannot abridge the private sale (of certain firearms) nor the possession in one’s private home. Congress can, under existing law, outlaw the transportation of that gun on public property, including just driving down the street. They can also outlaw tanks, obviously, exercising their “reasonable police power.” If they can outlaw tanks, at some point they can outlaw assault weapons. Indeed Congress did once, but the law was “allowed” to expire, opening up the sale of assault weapons.
Yesterday’s shooting in El Paso has already been declared a hate crime against Hispanics and immigrants. The shooting is impacting Hispanic’s rights to peacefully assemble, and though that Amendment does not apply to Walmart’s private property (they can boot off any political group, or any group, for that matter), the Amendment can and does apply to public property, including roads. One person’s Second Amendment rights abut my First Amendment rights, because I am an immigrant from Canada and I want to support my brothers and sisters from anywhere. I do not want to get shot.
Having a stand-off between amendments now, we can look at which one “trumps” (forgive me) the other. The First Amendment is a personal freedom that I cannot lose if I commit a felony. The other is not a personal freedom because I will lose it if I am convicted of a felony. The First Amendment should override the Second.
My proposal. Either Congress or a State can and should outlaw the sale of assault rifles, and ammunition clips allowing one to shoot over nine rounds at any given time. Congress can also prohibit the transportation of any firearm on public streets. Congress cannot unreasonably ban the sale of all firearms, nor can it ban all firearms from the home. But, congress can pass a law allowing the reasonable sale of “some” firearms (excluding assault rifles and high ammunition clips), and can outlaw the transportation of such firearms on public property. Perhaps upon sale of a firearm, Congress can grant the owner the right to transport the weapon on public streets for a short period in order to allow someone to get the weapon home.
Congress can exclude some weapons from the transportation ban, sporting rifles, shotguns, and target weapons. Congress can allow some shooting clubs, licensed to possess some weapons on their own private grounds. If one wants to practice shooting the 9mm handgun he or she has at home, a licensed shooting club can make an appointment for that person to fire the exact same weapon at a range.
You see where I am going. I believe that “reasonable police power” includes the right to do all possible to fight mass shootings. Mass shootings with 15-55 dead occur only when someone acquires weapons that are easy to shoot semi-automatically (Congress has already banned fully automatic weapons, machine guns, see how it works? They have also banned “bump stocks”). Mass shootings come from high caliber rifles, weapons where if you’re shot in the upper leg you will die because so much blood and muscle will be ripped on impact, you stand no chance. Mass shootings come from ammunition clips set up for the military, and when on the street allow mass shootings of the type we see so regularly. This is not rocket science.
The misconstrued interpretation of the Second Amendment comes from the Right Wing, as part of a carefully crafted lie perpetrated by the gun manufacturers. The gun manufacturers most certainly will lose sales if such a law is passed. Gun manufacturers have invested millions into turning this into a “conservative’s dogma” so that it is now a “political fireball” for which most conservatives want to fight. Due to this carefully orchestrated campaign, most people do not know the actual limits upon that power.
Now you do.
Or, conversely, we can go on being the only nation where these shootings occur more frequently than long weekends, where at least half the nation shrugs, calls for the presence of more weapons, and laments that nothing can be done.
Fuck that. They simply do not want to do anything. Your life means less than their sales. Your personal First Amendment right is less important than the gun manufacturers purported Second Amendment rights. This is what it all means, until we change it.
I propose we do. Lives matter, at least to me and you.
Thank you Jason.
I’m old enough (about to turn 62) to have had actual formal civics education as part of the curriculum in school growing up. Both in 8th grade and in high school. I remember in 8th grade when our teacher was talking about the concept of civil liberties and what I thought was a great question was asked – which was how far civil liberties defined in our Constitution & the Bill of Rights extended. In retrospect his answer was I think overly simplistic but it’s a pretty good guide and at least a fair starting point – he said they extend to the point where you violate someone else’s civil liberties.
IANAL but have long had an interest in law and for a layman a semi-decent ability to comprehend a given legal statute in addition to being able to tolerate the different use of the English language that existed when our Constitution was written. My best friend back in my hometown was a lawyer (he specialized in taxes and estate planning – helping farmers keep their farms in the family) and since I didn’t leave home & join the Marines till I was 26 I spent a fair amount of time at his house at night over a few years (he was two years older than me) helping him update his wall of CCH binders. So, as I said I’m not completely clueless when it comes to understanding laws and legal language. At the same time I’d like to think I’m wise enough to know the old saw about “A little knowledge can be a dangerous thing” and over on DK I frequently ask lawyers who happen to read my screeds delving into the law to weigh in. If I’m full of shit I’d rather find out and correct not only my thinking but any mistaken impressions I might leave in the minds of those who read what I write.
I got my first shotgun for Christmas when I was seven years old. For most of my life I had at least one firearm in my home. However it’s been over five years now since I’ve had any firearms because I really don’t need one. Due to physical limitations since then even trying to use anything other than a handgun for home defense (a pump action shotgun with the shortest barrel allowed by law loaded with #6 shot or smaller is best) would be a bad idea and since moving from a rural setting to apartments in nice areas the odds of a break in at night have been minimal. Hunting of course is out of the question, at least in a manner I’d find enjoyable which would take a while to explain. I would say I did enjoy the challenge of maintaining the skill of being a good shot but again, I see little need now and couldn’t afford to acquire a new firearm(s) and practice (regularly) to maintain my proficiency. I do understand though why people who enjoy hunting, target shooting and/or want to have a firearm for home defense wish to maintain their ability to own and use them.
I also know as you have pointed out that the right to “bear arms” isn’t absolute and never has been. Even free speech has limitations in fact – ordering someone to kill or harm someone else is against the law and in some instances inciting a mob to carry out certain actions is illegal. For example someone can’t stand up on a podium and incite a crowd to go to a certain person’s home and haul them out & lynch them in their own front yard.
Our freedoms come with responsibilities to use them responsibly which is something that those who bray the loudest about certain freedoms (owning and carrying around their guns for example) seemingly always forget. If they were ever taught that part to begin with. Hence the laws that sometimes wind up being framed by SCOTUS saying that no, the second amendment doesn’t mean Joe/Jane Sixpack can drive around town in a pickup truck with a fifty caliber machine gun mounted in the bed “just in case.” Or carry a lightweight anti-tank rocket on their shoulder (like a LAW rocket) because they want to be ready to fend off the “gubmint types” that might roll up in their community.
It’s drawing the line that’s been the hard part but since 1938 it’s been the general rule that weapons that were designed for use in actual battle/war can be subject to restrictions when it comes to civilian ownership and use. Hence the ban on fully automatic weapons (rifles) and heavy weapons. Yes, some people have them but they have to go through extraordinary steps to have them and so few do so it’s easy to keep tabs on them.
Prior to the change from the M-1 with it’s five shot clip and the adoption of the M-14 with its detachable box magazine even some battlefield weapons were and continue to be ok for civilian use such as hunting and target practice. However, the development of what would come to be known as assault weapons came about for specific reasons. It would take way too long to go in to but the idea became that every infantryman should be able to have a fully automatic weapon that could spray a LOT of bullets downrange as fast as possible. In real life of course it’s not that simple – ammunition gets heavy real fast. An individual bullet might not weigh much but carrying enough to be able to shoot seemingly forever like you see on TV and in movies? No way. In theory I could shoot out a couple of thousand of rounds of military ammo from an assault rifle in a couple of minutes. In reality carrying that much is impractical. However putting out five or six hundred rounds like a mass murdering shooter can and does is all too real a possibility. Even more for some of them.
Getting back to the development of assault weapons and the characteristics that make them so there are two things that are key. The pistol grip that allows you to keep the weapon shouldered and pointed towards the target(s) as you chance magazines and the box magazine/magazine “guide” on the weapon itself. With practice and if collecting used magazines for further reloading/use isn’t a consideration one can swap out a used 30 round magazine for a fresh one literally in a second or perhaps a fraction longer. Well within two seconds one can be firing towards the target(s) again. That’s potential rate of fire simply isn’t possible with a rifle designed for hunting, or even older military semi-auto weapons like the old M-1. Not even close.
My point in getting into that is there are characteristics that can be used in laws to define what is and is not an assault weapon, and I should note that even semi-auto versions of assault weapons are capable of very high rates of fire if one has done some practicing. In fact, firing semi-auto increases accuracy which can make the semi-auto versions used by someone intent on carrying out mass murder even more deadly in a school or a mall where people have places to flee and or disperse.
One area I’d ask you (since you’re a real attorney and have actual experience) to get in to is the topic of “Incorporation” of Amendments to the Constitution. I mentioned developing a more than typical interest in law and ability to semi-understand it a long time ago but to be honest until Justice Sotomayor’s confirmation hearing if I’d heard that particular legal term/concept it never stuck. Why I think it’s important in the context you’ve raised with this piece is that most people assume (incorrectly as you’ve noted) that because something is in the Bill of Rights it’s a right/freedom that is absolute and applies to everyone everywhere. However, as I understand it the process of “Incorporation” of the Amendments has been a long & slow process and even when it has taken place with a specific amendment there is still some level of tension between state and federal law.
Perhaps you’d be so kind as to tackle this subject and put it in terms we lay persons can understand and use when doing our own writing or trying to convince people we encounter in our daily lives?
As for the Constitutionality of such laws I too believe they pass muster.
I think what you are referring to is which rights in the bill of rights have been ruled to apply to state and local governments as well, like the second amendment. None were until the 14th Amendment, but the 14th then extended some down through the states. You are correct in that it is a hodge podge of stupid law bc it should be one standard, that “Yes” all federal law on the bill of rights is fully enforceable on the states.
Any more than saying that and I am suddenly out of my area of knowledge. For the purposes of this article I assumed all were, so as to address the battling concepts. I believe they likely are, believe it enough to write fully on it. Hope that helps, some.
I followed the Heller case to some degree and the controversy over Scalia’s “reasoning” in the decision including making it applicable to the states. I knew in a vague way that some parts of the Bill of Rights applied to the states & even that the 14th amendment was responsible but that despite the language of the 14th there were SCOTUS decisions that refused to make 1-8 fully applicable to the states. It wasn’t until Sotomayor’s confirmation that the term Incorporation (of amendments) really got into my head. Since then I’ve tried to learn more about it and gain a better understanding of which amendments/rights are incorporated and which aren’t. Since within Incorporation there is a separate doctrine of selective incorporation it gets confusing as hell – even for lawyers so I gather so for a lay person, even one like me who gets some enjoyment in trying to understand the law it’s a fucking hodgepodge that is frustrating as hell.
I recall that after Heller there was another decision in 2010 or 11 that further addressed incorporation of the second amendment. What I’m unsure of is whether it’s fully incorporated or selectively – and even Scalia seemed to agree that states/localities could establish a compelling reason for certain restrictions on the right to keep and bear arms. Again, another legal term in Constitutional law (Strict Scrutiny) comes into play. That’s why I ask actual lawyers with the proper training for help in trying to sort this stuff out. Again, I know enough (I think) to know there’s some important stuff I don’t know and/or understand and more importantly need help in figuring out. Hence my question to you.
I’ve written on Kos sometimes about gun stuff although more in comments. I’d be willing to try and tackle the gun control subject in some diaries of my own but would rather not make a complete fool of myself in the process by assuming an understanding of Constitutional law beyond my current level of knowledge/comprehension. However since I do have some better than average knowledge and experience when it comes to firearms including military weapons, law enforcement (was attached to an MP unit at HQMC for a while) and self defense. I also have experience living in small town/rural America as well as cities and understand the different issues, dynamics and cultures when it comes to firearms and their uses so I think I have something to contribute. However mixing both what I just outlined with law and the Constitution to propose any solutions that might practically have a chance at implementation & more importantly acceptance requires a level of knowledge of Constitutional law that as you indicate can be challenging even for lawyers who don’t regularly address it.
“We can go on being the only nation where these shootings occur more frequently than long weekends”
At the moment they seem to be occurring more often than ordinary weekends.
And for that matter, not far off a daily occurrence.