The Second Amendment: Case law doesn't preclude background checks

  • Article by: Edward J. Schwartzbauer
  • Updated: April 27, 2013 - 7:53 AM

We are all overloaded these days with well-intended articles about the meaning and scope of the Second Amendment. However, most don’t bother to examine the Supreme Court’s opinion in District of Columbia vs. Heller, the 2008 case that set forth the controlling principles.

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owatonnabillApr. 26, 13 9:44 PM

What are the chances that the constitutionality of background checks for firearms purchases won't be decided on the basis of the Second Amendment at all, but the Fifth and Fourteenth? After all universal background checks could be interpreted as a warrantless search with no probable cause. Our system does not require us to prove our innocence.

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hawkeye56379Apr. 26, 1310:01 PM

The chances are just about zero. First of all, it's the Fourth Amendment that covers search and seizure, not the two you mentioned. Second, background checks are done for all sorts of applications (including for firearms purchases) without being considered searches.

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corybirkemeyerApr. 26, 1310:25 PM

A component of Heller that the author conveniently ignores is the common use standard. Heller found that handgun ownership is constitutionally protected based on the idea that they are in common usage for the lawful purpose of self-defense. The AR-15 (a dreaded "assault weapon") is one of the most popular configurations of semi-automatic rifles, with all major firearms manufacturers offering multiple models. There are millions of law-abiding owners using these firearms for the lawful purposes of hunting, sport, and self-defense. Clearly these firearms are functionally, ballistically, and numerically common, and their ownership is protected under Heller. As Nicolas J. Johnson has convincingly argued, legislative distinctions between legitimate and illegitimate semiautomatic rifles are incoherent and unworkable. The Assault Weapons Ban of 1994 famously outlawed the AR-15 but excluded the Ruger Mini 14; these firearms differ only cosmetically and are functionally identical. Apparently the AR-15 looked too "military" (bad) whereas the Mini 14 looked like a "hunting" (good) rifle. How can gun control legislation enacted under the guise of public safety treat firearms with the exact same operating system (hence the exact same lethality) differently and still be considered legitimate? Absurd. Now on to background checks. Firearm transfers between private citizens should not be regulated and tracked by the government. Citizens should not require government approval to exercise a civil right. Universal background checks are an intermediate means to gun control advocates' ultimate end: registration and confiscation through the incremental erosion of the Second Amendment. Requiring that all firearm transfers go through Federal Firearms Licensed dealers results in a de facto firearms registry by means of ATF Form 4473. History shows that registration inevitably leads to confiscation (e.g. Germany, China, the Soviet Union, Turkey, Cambodia, and others) and represents a direct violation of the Second Amendment. Those who incorrectly state that confiscation "would never happen in America" and "no-one is trying to take your guns" have to look no further than the proposed Assault Weapons Ban of 2013. By making it a felony to transfer a so-called "assault weapon" to someone else upon the owners death, the government confiscates private firearms. That 40 Senators voted for this unconstitutional legislation demonstrates that confiscation is a very real threat and is the ultimate goal of many gun control advocates.

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owatonnabillApr. 27, 13 6:11 AM

The chances are just about zero. First of all, it's the Fourth Amendment that covers search and seizure, not the two you mentioned." ............ True. But the Fifth covers self-incrimination.

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chuckdancerApr. 27, 13 6:56 AM

Yes, of course the AR-15 is just common as a McDonald's hamburger in a bun. Why I cann't even think of anyone in the neighborhood who doesn't have their AR-15 in use just about everday defending the home place.

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mavericknhApr. 27, 13 6:57 AM

When the Ninth Circuit agreed to rehear Nordyke v. King en banc, the panel opinion explained that: "We believe it most unlikely that, in a one-sentence footnote, the Supreme Court would undermine the rest of its analysis by declaring, inter alia, that all gun sales regulations, no matter how burdensome, should receive the rubber stamp of rational basis review. Instead, we read "presumptively lawful regulations" to mean "regulations which we presume will survive constitutional scrutiny," and to say nothing about what standard of review should be applied to them." So, yes, Heller said that. But no, Heller did not decide that.

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fishanhunt2Apr. 27, 13 7:01 AM

I suspect that when those who wish to weaken, subvert, rewrite and limit our Constitution are long gone from this planet, our U. S. constitution will be still there, intact. This is not the first time in history the Constitution has come under attack by those who wish to pursue their own political slanted agenda. Over the years the Constitution has been the bell that when it comes to individual liberty and freedom has continued to ring true. Our Forefathers intended it that way and the Constitution has outlasted all those who have gone up against it.

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tupelohoneyApr. 27, 13 7:48 AM

I love the argument that our founding fathers never envisioned citizens owning semi automatic weapons. Do you think they envisioned the military owning fully automatic weapons?

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tupelohoneyApr. 27, 13 7:51 AM

Funny how liberals have made the AR-15 the target in their anti-gun crusade. How many deaths have been caused by the user of an AR-15 versus the user of a hand gun? So, why don't you go after the real weapon of choice of criminals?

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windigolakeApr. 27, 13 8:00 AM

owatonnabill === "The chances are just about zero. First of all, it's the Fourth Amendment that covers search and seizure, not the two you mentioned." ............ True. But the Fifth covers self-incrimination." Sorry, bill. The Fifth Amendment states: "[No person]...shall be compelled in any criminal case to be a witness against himself...." A background check is not a criminal case, and nobody is being required to testify against himself. The background check simply looks at history. There's nothing close to a constitutional issue under the Fifth amendment.

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