The Second Amendment is Not an Unfettered Right

Last updated on July 17th, 2023 at 06:04 pm

bill of rights

The slayings of twenty children and seven adults in Newton, Connecticut proves something is wrong with gun control in America.   Congress passed the Brady Law in 1994.  The law banned the sale or possession of assault weapons, but Congress let the ban expire ten years later.  Likewise, criminal background checks are not always required at gun shows because the Brady Law does not apply to unlicensed gun dealers.   Many of the dealers at gun shows are unlicensed.  Meanwhile gun owners clamor that their 2nd Amendment rights are infringed upon if there are any restrictions imposed upon gun ownership.   The result is a dangerous combination of no meaningful restrictions on the purchase of assault weapons, inadequate background checks and the elevation of the 2nd Amendment to where it trumps all other rights, including the rights to live and to be safe.

The belief in the unfettered right to bear arms ignores all rights are relational and not absolute.  For example, the 1st Amendment does not allow for the ritual sacrifice of human beings under the guise of the free exercise of religion.  The 1st Amendment is not an unfettered right, nor is the 2nd Amendment.  An individual’s rights extend only so far as the life and liberty of another are not threatened.

Laws that make citizens safer do not infringe upon the rights of others.  Even if restrictions on the right to bear arms are imposed, those restrictions are valid if they make citizens safer.   An assault weapons ban and more background checks make citizens safer.

In order to help prevent tragedies such as Columbine, Virginia Tech, Aurora and Connecticut, the Brady Law assault weapons ban must be reinstated or another law similar to it must be passed.  In addition, background checks must be required whenever and wherever a gun is sold, be in a store, at a gun show or over the internet.  These are small concessions to make, and they are not infringements on the right to bear arms.  Even if these restrictions were infringements, they would be necessary infringements, as the right to bear arms is not absolute.

Gun advocates argue we have meaningful restrictions already.  This is inaccurate because assault rifles are legal, and background checks are not always required or always performed.

Banning assault weapons would not infringe upon the right to bear arms because weapons designed to kill large numbers of people quickly were never intended by the Founding Fathers.  The purpose of the 2nd Amendment is self- defense, primarily against occupying forces, which was a much more real threat during the Founding Father’s time than it is today.

Reinstating the assault rifle ban would cut down on the availability of these kinds of weapons, and it would help prevent tragedies such as the one in Connecticut.  Quite frankly, assault rifles are more deadly than handguns or ordinary rifles because they kill more people.  If less assault weapons are available, from a practical standpoint, it will be harder to carry out a mass killing.

Background checks are not always performed at gun shows, and this is known as the so-called “gun show loophole” because the Brady Law only applies to licensed gun sellers.  Although it is difficult to determine how many guns are sold illegally at gun shows, a recent study performed by the City of New York determined over 60 percent of guns purchased at gun shows in New York City were purchased without proper background checks.

The gun lobby, led by the NRA, has convinced large numbers of people that any restriction on the ability to purchase any type of gun is somehow an infringement upon the right to bear arms.   This is inaccurate, and it ignores the fact that the right to bear arms does not trump all other rights.  It is not an absolute right, nor should it be.  Unfortunately, many of the members of Congress will not yield for any restrictions on gun ownership because they are beholden to gun manufacturers.  In many ways, Congress is a mouthpiece for gun manufacturers, and this is frightening.

The last piece to this unfortunate puzzle is the mental health piece.  Mental health is the most significant health care issue, and the same members of Congress who support the gun lobby are the same ones who vote to cut funding for mental health treatment.  Until mental health treatment is adequately funded there will be more incidents like the one in Connecticut.

Gun control has always been a divisive issue in this country, but the 2nd Amendment is the law of the land.   Since gun ownership is here to stay, steps must be taken to ban all assault weapons and to require background checks for all guns purchased period.  Lastly, mental health treatment must be adequately funded.  Without these measures, this country will experience more incidents like the one in Connecticut.


Lawyer at Wells Jenkins Lucas Jenkins PLLC in North Carolina. Writes the daily blog

Copyright PoliticusUSA LLC 2008-2023