The attacker was unable to kill anyone and the defenders of the federal building shot him dead. Still this has been a wake-up call here in Dallas.
My op-ed draws heavily on my open letter to Ted Cruz, posted last year on this blog. My point is: we, the American people, are not helpless to address and remedy much of such violence by bullets. Legislation is needed to add reasonable, sensible restrictions and limitations on guns, particularly the assault weapons that were banned from 1994 for ten years but became legal in 2004 and are being sold in huge quantities (estimates are 5-10 million of them out there).
And such legislation should well fit within the types of restrictions and limitations that Justice Antonin Scalia limned in his majority opinion in District of Columbia v. Heller.
Here is the text of my op-ed:
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"The Right to a Gun is Not Absolute"
by Josiah M. Daniel, III
In view of the attack on the federal courthouse in downtown Dallas on Monday by a shooter carrying an assault weapon with a large magazine, this quotation is directly in point:
“Like most rights, the right secured by 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 author of those words is not Barack Obama or Hillary Clinton or Ruth Bader Ginsberg or Nancy Pelosi. It was the judicial hero of conservatives, the late Supreme Court Justice Antonin Scalia. One of our U.S. senators, Ted Cruz, praised him for authoring “some of the most important decisions ever, including District of Columbia v. Heller, which recognized our fundamental right under the Second Amendment to keep and bear arms.”
The quotation—holding that the right to a gun is not absolute—is directly from that same Heller decision that Senator Cruz commends, written by Justice Scalia.
In fact, in Heller, Scalia went on to specify several types of Constitutionally permissible restrictions: “For example, concealed weapons prohibitions have been upheld under the [Second] Amendment [and there is no] 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.”
The purpose of the right, Scalia wrote, is for the protection of the home but “of course the right was not unlimited,” and it does not “protect the right of citizens to carry arms for any sort of confrontation.”
A little history is germane. After World War I, gun manufacturers freely sold the Thompson submachine gun, and criminals eagerly bought and used it in an unprecedented nationwide crime wave. To solve this problem—gangsters with Tommy guns killing innocent people—our 20th century Texan ancestors took action through the 42nd Legislature to outlaw all automatic weapons, along with sawed-off shotguns, automatic pistols, and silencers, in a statute enacted in 1933. The federal prohibition followed the next year, upheld in 1939 by the U.S. Supreme Court under the Second Amendment. The current Texas Penal Code continues the prohibition of guns such as “explosive weapons,” “machine guns,” “shotguns with a barrel length of less than 18 inches,” and “firearm silencers.”
This history informs the appropriateness of reasonable, new “prohibitions” and “conditions and qualifications” to solve today’s public-safety problem such as the attack on the federal courthouse in Dallas by a man firing an assault weapon with “banana clips” holding large numbers of bullets. There is no reason for anyone—other than our armed forces and police SWAT teams—to own guns such as Monday’s shooter, Brian Clyde, carried and fired repeatedly.
This is a public health and safety issue. Total gun deaths in the United States average around 35,000 annually—about equal to vehicular deaths. Two-thirds are suicides and approximately 12,000 are homicides by gun. Almost 90,000 are wounded. Mass shootings by military-type weapons now occur in our nation, on average, once or more per day.
The question before the nation is
whether we shall have background checks and waiting periods for all who desire
a gun, regulation of military-type weapons, and enhanced prohibitions on guns
in schools and public buildings? As a fifth-generation Texan who owns sporting
firearms and who wants my grandkids never to hear the cry “active shooter!,” I
answer “Yes!”
Such public safety measures are
consistent with Texas history and existing Texas gun regulations—and there’s
plenty of room for additional “prohibitions” and “conditions and
qualifications” under the Second Amendment as Scalia explained it in Heller.
Daniel, a retired lawyer and historian, is writing a biography of Dallas congressman Hatton Sumners.