THE BLOG
12/14/2012 04:44 pm ET Updated Feb 13, 2013

As Gunmen Continue to Terrorize Our Public Places, the Courts Continue to Weaken Our Gun Laws

The tragic juxtaposition of this week's gun-related events suggests the presence of a malignancy in our country. Hours before yet another shooting at Portland, OR's Clackamas Town Center and three days before 26 people, excluding the gunman, were reportedly killed in a rampage at Newtown, CT's Sandy Hook School, the 7th U.S. Circuit Court of Appeals overturned Illinois' ban on carrying concealed weapons. This comes after the Heller and McDonald cases further eroded the abilities of cities and states to protect their residents from firearms. Rather than helping make our country safer, our courts are making us more vulnerable.

In the 2-1 ruling, Judge Posner argued, "A right to bear arms thus implies a right to carry a loaded gun outside the home." However, given that each week continues to deliver more horror, must we resign ourselves to the fatalism? Must we treat the Constitution, and its Second Amendment, as static and sacrosanct, as the bloodshed spirals onward? From a historical perspective, the answer is no.

The meaning of the Second Amendment is itself the subject of great debate. Much of the disagreement emanates from the commas, which have bearing on the Amendment's meaning. Some scholars and legal commentators, including Adam Freedman argue that the Amendment, which appears in the Constitution as:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Should be read as:

"Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed."

The debates surrounding the enactment of the Amendment are also telling, with discussion focused on Britain's attempts to eliminate the American colonial militias, which ultimately helped secure independence for the fledgling new country. These discussions suggest that the Second Amendment secures a collective, not personal, right to defense by local militias. We have militias today: the National Guards forces in each state.

The founders of our nation and the crafters of our amendments were, while exceptional in many respects, mere mortals prone to error, misjudgment and the inability to predict the future. Let us not forget that the institution of slavery was protected, and even promoted, by our Constitution. Let us not forget that the fundamental right to vote, at first, was largely limited to white, Christian male landowners who could pay a poll tax. Let us not forget that the 18th Amendment to the Constitution banned the "manufacture, sale, or transportation" of alcohol in the United States, leading to an upsurge in organized crime and mob activity.

Even if the framers intended to enshrine a personal right to bear arms in the Constitution, can we not reconceive what this means in the modern era, in which gunmen routinely terrorize our public places? Let us consider the case of the First Amendment, there are limits on free speech. One cannot yell, "fire!" in a burning theater, say obscenities on broadcast television, incite violence, or play a rock concert in a public park at midnight. There are also limits on the free exercise of religion. For instance, people cannot legally withhold vital medicine from their children, use most illegal drugs or murder their relatives in honor killings, despite the fact that religious traditions might provide the basis for engaging in such behavior. These limitations on our liberties protect society from descending into chaos.

As John Locke, whose philosophy guided our nation's founders, wrote in his Second Treatise of Government, people agree to be governed, giving up absolute freedom to do as they please, because a society in which there are no regulations is a dangerous place, a "state of nature," where everyone is vulnerable. Locke argued that governments are obliged to "protect peace, safety, and public good of the people." And now, we need our judges and our representatives to secure these things for all of us, as duty requires -- not to do the opposite.

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