Since the Connecticut shooting in December, gun control has been at the forefront of political discussion. While the average student might question whether or not guns should exist in society, few people examine the existing constitutional and legal precedents that define American law. As such, the Federalist Society [Editor's Note: and the Cornell Law 2nd Amendment Club], on January 29th, hosted a gun control debate to help clarify such complicated and often controversial legalities.
The purpose of the debate was to clarify the legal aspects surrounding the national discussion on gun control. Alan Gura, the constitutional lawyer who successfully argued the Heller v D.C. Supreme Court case, and Professor Michael Dorf, Cornell Law professor and noted Constitutional law scholar, focused the debate on how the local and federal courts should evaluate gun legislation.
According to Gura, the Supreme Court has defined much of the Second Amendment. “[The right to bear arms] started with history. ‘Bear’ meant to carry,” he remarked. “Heller says the core purpose of this amendment is the right to defend yourself.”
By this definition, the Supreme Court has effectively created a precedent in which some basic level of gun ownership is protected under the Constitution and that people are allowed to use guns in a defensive manner. This suggests that for the foreseeable future, gun ownership will remain a part of American society.
However, Gura qualified his statement. “Heller says there are some restrictions, such as the banning of guns in sensitive places.”
“The rule derived is that the manner [of using and owning guns] can be regulated.” As such, although gun ownership will remain a part of American society, Congress and local governments can place certain levels of restrictions on gun ownership.
Professor Michael Dorf had little disagreement on Gura’s assessment regarding the legalities of gun rights. However, Dorf highlighted some ambiguous elements within the ruling.
“The Supreme Court will probably allow a right to defend yourself and a right [to use guns] in the home and public space,” he commented. “But what methodology will be used for weapons outside the home?”
Because the ruling was partially vague, the government has given an unclear opinion on practical matters regarding gun ownership and use. For example, what constitutes a “sensitive space”? According to Dorf, these unanswered questions are important in understanding gun legislation.
As the discussion progressed, both Professor Dorf and Mr. Gura argued the more appropriate methods of judicial interpretation that define gun restriction. According to Gura, the U.S. Constitution can be read through its framers’ intent. Thus, according to him, the Second Amendment and the framers intent of this right must be viewed in a historical context in order to accurately and effectively establish the right.
Gura took this logic one step further in interpreting the Second Amendment. “The Second Amendment presupposes the use of weapons used in the military. Technology has changed, which affects the right. However, technology does not change the [idea] of common use.” Based on the historical context of the amendment, individuals have the right to bear weapons used for common or personal use. Allowing individuals to carry common weapons was how effective local militias formed and what consequent court cases have considered protected under the Second Amendment during the time period.
Professor Dorf, however, contended that the right is vague as well as outdated and thus a more interpretive perspective should be used. “What is necessary for self-defense might be lower [than the weapons used for personal use]. But this is completely arbitrary.”
Dorf argued that understanding the mindset of the framers is impossible. Given that the language of the Second Amendment and the Supreme Court cases are somewhat vague, American legislators must use their own personal judgment.
By doing this, Dorf argued that the Second Amendment could be standardized to the needs of society today, rather than the historical context of the past.
Whether an individual perceives the law from a “conservative” or “liberal” viewpoint, these issues are both controversial and unclear.
What is the difference between using a gun at home and in a public space?
What constitutes common use?
All of these questions are worth considering and debating. Americans have to accept that the right to a weapon is a fundamental right, and the use of a weapon in cases of self-defense is a core American value stated in the Constitution. Government and society can debate the legal formalities and constitutional restrictions regarding gun control, but at the end of the day, guns will be protected. If society disapproves of this Constitutional value, then an amendment should be passed. Until then, guns are here to stay.
Bill Snyder is a freshman in the school of Arts and Sciences. He can be reached at firstname.lastname@example.org.