Second Amendment and other constitutional rights are not absolute

In the current gun violence debate, the National Rifle Association and its supporters often cite the Second Amendment to the U.S. Constitution for their opposition to sensible gun safety laws. However, as a guest poster recently wrote here, such a view falsely turns the Second Amendment into a “super right.” In fact, most individual rights under the U.S. Constitution, including the Second Amendment and other amendments in the Bill of Rights, are not so absolute; rather, they are subject to reasonable limits. Here is a brief and partial list of examples:

First Amendment

You do not have the right to yell “fire!” in a crowded movie theater, to publish certain sensitive military information such as troop movements during wartime, to show material deemed “obscene,” to call for the incitement of violence, or to commit defamation such as libel and slander.

You do not have the right to block traffic and hold an impromptu parade down Pennsylvania Avenue in Washington, DC; you have to apply for a permit.

Your freedom of religion does not allow you to kill other people in religious human sacrifices.

Fourth Amendment

You, your home, your papers and your effects can be searched and seized, as long as such searches and seizures are not “unreasonable.”

Fifth Amendment

You can be deprived of life, liberty or property as long as you have been given due process of law.

Your private property can be taken for public use, as long as you have been given just compensation.

Fourteenth Amendment

A state may deprive you of life, liberty or property as long as it gives you due process of law.

Another response that opponents of sensible gun laws sometimes give is that the Second Amendment is special because it states that “the right … shall not be infringed.” However, that language is similar to the language in the First Amendment stating that “Congress shall make no law ….” In both cases, the U.S. Supreme Court has made clear that, in fact, the right is not unfettered. Here is what the Supreme Court said in its recent District of Columbia v. Heller decision regarding the Second Amendment:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:  For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

The bottom line here is that the Second Amendment isn’t special. As with other rights under the Constitution, the right to keep and bear arms is subject to reasonable limits. Anyone who argues otherwise is dead wrong.






5 Responses to Second Amendment and other constitutional rights are not absolute
  1. […] Messaging Matters reminds us that all of the amendments—including the second—are not absolute rights. […]

  2. oh my! this is it?
    February 3, 2013 | 6:56 am

    […] Second Amendment and other constitutional rights are not absolute […]

  3. E.A. Blair
    February 3, 2013 | 12:34 pm

    Someone once tried to tell me that the Second Amendment’s importance was underscored by its place in the Bill of Rights and was astonished to learn that it was actually the Fourth Amendment. The original First Amendment dealt with congressional apportionment; it was never approved and, technically, is still pending. The original Second Amendment dealt with congressional pay raises, and was finally passed in 1992 as the Twenty-Seventh Amendment.

    I’m quite sure that people would have a much different perception of the Bill of Rights if its first two amendments had come down to us as dealing with such stodgy topics as apportionment and pay raises.

  4. Frank Zappa
    February 3, 2013 | 1:49 pm

    Another important point within the US Constitution that the NRA wants to conveniently forget;

    Article I, Section 8, Clause 3: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.

    Guns and ammunition are commerce therefore; the USG has all rights to regulate sales.

  5. Jason Korbus
    February 6, 2013 | 4:09 pm

    Just discovered this blog, and it’s terrific. Thanks!

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