I strenuously support individual liberties and I abhor government overreach. I am fiercely defensive of the Bill of Rights and the protections it grants us in terms of religion, free speech, freedom from unreasonable search and seizure, due process, equal protection, the right to an attorney and, yes, the right to bear arms.
But these rights “are not unlimited,” as Justice Antonin Scalia wrote in the landmark District of Columbia v. Heller ruling (U.S. Supreme Court No. 07–290, June 2008), which confirmed the right of individuals to “keep and carry weapons.”
Washington DC had some of the strictest gun laws in the country. The city banned the carrying of guns in public without a license, but refused to offer such licenses. Eventually, it did issue one-year permits for residents to keep firearms in their homes – but only if they were kept “unloaded and disassembled or bound by a trigger lock or similar device.”
The 5-4 majority opinion against the city, written by Scalia, demoralized gun-control advocates – and the four dissenting liberal justices on the court. In it, Scalia proclaimed that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, [emphasis added] and to use that arm for traditionally lawful purposes, such as self-defense within the home.” DC’s requirement for trigger locks, he noted, “prohibits the use of functional firearms in the home.”
It was a very big deal. And it is still considered the most definitive court ruling ever on the individual right to keep and carry arms. Gun-rights advocates love to wave Heller in the face of gun-control advocates (and why not?) but they always conveniently overlook one small section of the 44-page decision.
“Like most rights, the right secured by the Second Amendment is not unlimited,” Scalia said. It does not, for example, grant “the right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
“Nothing in our opinion,” he went out of his way to emphasize, “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.”
And there was one other “important limitation on the right to keep and carry arms,” Scalia wrote. “The sorts of weapons protected (in the 18th Century) were those ‘in common use at the time’ [and] we think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “’dangerous and unusual weapons.’”
Just to recap: The Second Amendment permits laws that limit the types of guns that may be sold, regulate the manner in which they are sold, bar the rights of certain citizens to purchase or bear arms, and establish locations where carrying a weapon is prohibited.
So what other rights are limited? The Fourth Amendment’s protection against search and seizure without a warrant, for one. In the first chapter of my book, about SWAT-style home raids, I describe how the police are not permitted to enter your home, or any private outside area not visible from the street (a zone legally known as “curtilage”), without a warrant. The courts have long determined that citizens have a “reasonable expectation of privacy” in these areas.
What you do on your front porch, driveway, or front yard, or even in front of an open window, can usually be observed from the street. In those places, you have no reasonable expectation of privacy and no Fourth Amendment protections. That’s why the police can enter your property and knock on your front door without a warrant or even probable cause. They can also approach your property from open fields.
In certain other cases, police can search homes without a warrant. Chief among them is an emergency situation where delaying action to obtain a warrant is not feasible, including when someone’s life or safety is at stake, when a suspect is about to escape, or when evidence is about to be removed or destroyed. Police also don’t need a warrant to search a person or property when the search (including strip searches and body-cavity exams) is related to a lawful arrest or if the suspected illegal items to be seized are in plain sight.
The rights granted under the Fourth Amendment, then, like those under the Second Amendment, “are not unlimited.” The same is true for virtually all of the amendments, especially the one I cherish most, the First.
Yes, you have the right to say what you want, when you want and to whom you want. But not always.
The courts have upheld that the First Amendment does not protect all forms of speech or expression, including: obscenity, child pornography, direct incitement to violence or criminal acts, a personal threat of violence, defamation, perjury, and false advertising.
The government can also prohibit certain forms of speech on its own property. Government employees can lose their jobs for making racially offensive remarks, uttering profanities, or saying something that interferes with the efficiency of the workplace. Protesters cannot disrupt government functions. And the government retains considerable control over speech in the immigration, military, prison and judicial systems – (if you swear at a judge, you can be jailed for criminal contempt).
And of course, shouting “Fire!” in a movie theater is NOT protected speech, unless there is actually a fire.
Most people would consider these to be “reasonable limits” on the First and Fourth Amendments. So why can’t the gun-rights community accept that similar limits are permitted under the Second Amendment?