In the aftermath of the Newtown, CT tragedy, and the anticipated calls for new gun control legislation, the answer to the debate at least with regard to an “assault weapons” ban, already lies within established Supreme Court precedent. 

The Second Amendment right to keep and bear arms is, in the words of our Supreme Court, “a fundamental right necessary to our scheme of ordered liberty.”  In District of Columbia v. Heller in 2008 and again in McDonald v. City of Chicago in 2010, a conservative majority of the Supreme Court struck down legislation banning or severely restricting handgun possession.  The Court held that the Second Amendment codified a preexisting right to keep and bear arms for lawful purposes, most notably for self-defense within the home.  Handgun ownership, at least, is not going away without a constitutional amendment. 

However, the same conservative Supreme Court majority that struck down the handgun bans also recognized that the right to bear arms was not unlimited, just as freedom of speech is not unlimited.  Justice Alito cited a 1939 Supreme Court opinion, U.S. v. Miller, which held that a prohibition against unlicensed ownership of a sawed-off shotgun did not violate the Second Amendment.  Justice Alito noted that bans of “M-16s and the like” did not offend the Second Amendment even though one might argue a citizen militia today cannot be effective against a tyrannical government without such firepower.  The conservative majority of the Court extended Second Amendment protection only to those weapons in common use in the home for lawful purposes.  Moreover, our country already had an “assault weapons” ban in place for ten years.  Though one may argue as to its effectiveness, one cannot argue its constitutionality or the constitutionality of a similar law in the future.

Recognizing that a ban on ownership of a rifle such as used in the Newtown, CT shooting can be constitutionally valid, how does one respond to the argument that such bans are not going to stop a deranged individual from committing a crime? Let’s take the Bushmaster rifle used in Newtown, CT out of the incident and assume the killer still showed up armed only with the two pistols for which there is Second Amendment protection.  He would have shot out the front door of the school and entered the building just as he did with the Bushmaster.  He most likely could have killed several people before the police arrived . . . but not twenty-six.  If an assault weapons ban reduces the number of deaths a deranged person is capable of inflicting, don’t those lives outweigh the right of gun enthusiasts to use them for target practice? 

Before I am accused of being anti-gun, let me say I own firearms, just not assault weapons.  I would never use an assault weapon in my home for self-defense.  Using the Bushmaster to defend against a home invader would be like setting off a whole-house pesticide bomb to get rid of one stink bug. 

Some gun advocates argue that more people die in automobile accidents than gun violence every year.   Since no one is calling for a ban on automobiles, it follows we should not ban assault rifles.  However, before one is legally able to drive an automobile, he or she must take a test and demonstrate proficiency behind the wheel. We must be licensed to drive an automobile and renew our licenses periodically.  No one has suggested we have given up any of our cherished freedoms by complying with drivers’ license requirements.  If assault weapons ownership is permitted, then it also follows that it should come with some training and demonstrated proficiency as well as licensing requirements no different than for automobiles.

I am sympathetic to those who have already purchased such weapons legally.  A law immediately declaring possession of such weapons illegal (rather than simply new sales) would be constitutionally suspect for effectively taking away property without compensation and due process of law.  Addressing existing ownership is a thornier issue which must be carefully and conscientiously considered in any legislative process. 

There is near unanimity of agreement on the lack of an easy fix to prevent future tragedies like the one in Newtown, CT.   We have a culture that glamorizes violence in video games and a variety of other media.  Governments have cut back on mental health programs which may help identify and treat individuals prone to such violence before they act out.  One thing is clear to me.  We must have this discussion, civilly – without demonizing others for their beliefs – and do something.  Otherwise, we do a disservice to the values our country stands for and to the memories of Jack and Emilie and Noah and Catherine and Victoria and all the students and educators who perished at Sandy Hook Elementary School.