Charles McElwee: What can we actually do about firearms?

Charlie McElwee

Charlie McElwee

There has been a lot of sustained public outcry concerning recent mass shootings. On Aug. 3, a white 21-year-old gunman in El Paso, Texas, killed 22 people and injured 24. Hours later, a white 24-year-old gunman in Dayton, Ohio, killed nine people and injured 17. On Aug. 31, a white 36-year-old gunman in Odessa, Texas, killed seven people and injured 22.

The El Paso shooter used an AK-47-style assault rifle in his massacre, the Dayton shooter an semiautomatic pistol, modified to look and act like a rifle. The Odessa shooter used an AR-15-type rifle. All three firearms are capable of pouring a stream of high-velocity bullets from their magazines. The Dayton shooter had a high-capacity ammo hopper on his weapon capable of holding 100 rounds.

Out of these incidents the phrase that has arisen is “do something.”

It appears the “something” that many people want done to curb or stop the massacres from guns in El Paso, Dayton, and Odessa, and earlier ones like them elsewhere, relates to greater federal and state legislative restrictions on the sale and possession of semi-automatic assault weapons with a large magazine of ammunition, designed and configured for rapid fire and combat use.

Others, like Democrat Presidential candidate Beto O’Rourke, would impose a mandatory federal buyback program for assault weapons, such as the AR-15 and AK-47.

Consideration of congressional or state legislative action to regulate or ban the sale, transfer or possession of firearms appropriately commences with an understanding of the Second Amendment to the United States Constitution to determine what “somethings” it may inhibit.

The Second Amendment provides: “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.” A common definition of the intransitive verb “infringed” is to encroach upon a person’s rights by gradual steps or stealth.

The amendment, one of the 10 in the Bill of Rights, written in 1789 and ratified in 1791, is today, more than 225 years later, facially obscure in its meaning. In other words, it’s not readily understood or clearly expressed.

It was not until 2008 that the Supreme Court of the United States, in one of its most famous decisions, District of Columbia v. Heller, decided upon the meaning of the Second Amendment in the narrow factual context of the dispute before it, and then only by a margin of 5-4. The 2008 dispute before the court in Heller involved a District of Columbia law that banned handgun possession and required that all firearms in the home be kept nonfunctional, even when necessary for self-defense. The court’s five-member majority declared that the District of Columbia law violated the Second Amendment.

As so interpreted by the court in Heller in its primary holding, the Second Amendment protects the right of private citizens to possess an ordinary type of firearm, such as a handgun, and use it for lawful, historically established situations, such as self-defense within a home — even when there is no relationship to a local militia — and to keep such a firearm functional.

The court’s majority in its 2008 decision stated that “[t]he Second Amendment is naturally divided into two parts: its prefatory clause [“A well regulated Militia, being necessary to the security of a free state,”] and its operative clause” [“the right of the people to keep and bear Arms, shall not be infringed.”]”

The court’s majority focused on the operative clause in their decision, while the four justice dissenters believed that the prefatory clause, which they called “the preamble,” of the Second Amendment, protects only the right to possess and carry a firearm in connection with service in a state-organized militia. Thus, the government would have more authority to regulate the use or possession of firearms for purely civilian purposes.

The four dissenting Justices in Heller declared that “[t]he history of the adoption of the [Second] Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.”

Were the Supreme Court of the United States to adopt in the future Heller’s four dissenting Justices’ interpretation of the Second Amendment, the result may be a massive influx of citizens to join the militias of their states in an effort to protect their right to possess and use firearms at least for self-defense within their homes and for hunting.

Depending upon how Congress may respond following any such reinterpretation of the meaning of the Second Amendment by the U.S. Supreme Court, it cannot be known how enlarged state militias might act in defense of state sovereignty.

The Heller decision is a narrow one, and should not be extended as a precedent for extending a right with respect to a firearm beyond the circumscription of the words in the court’s ruling and the facts of the case.

The court’s 2008 decision acknowledged that “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.”

The majority of the court in Heller recognized that their “opinion should not be taken to cast doubt on long standing prohibitions on the possession of firearms by felons or 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.”

McElwee is a Charleston lawyer with the firm Robinson & McElwee PLLC. The views expressed are his alone.

Funerals for Tuesday, October 15, 2019

Dotson, Jeffery - 7 p.m., Good Shepherd Mortuary, South Charleston.

Kees, Nancy - 11 a.m., Salem Road Freewill Baptist Church, Oak Hill.

Payne, Arless - 5 p.m., Taylor-Vandale Funeral Home, Spencer.

Taylor, Connie - 11 a.m., Memory Gardens, Low Gap.

Taylor, Joseph - 11 a.m., Gauley Bridge Baptist Church.

Williams, Nellie - 1 p.m., Pineview Cemetery, Orgas.

Yates, Ruth - 11:30 a.m., Sunset Memorial Park Mausoleum, South Charleston.