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COMMENTARY

Second Amendment Rights Are Not Absolute

By SAUL CORNELL | COMMENTARY

The Hartford Courant

7:00 PM EST, February 1, 2013

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The National Rifle Association's ridiculous claim that the Second Amendment is the only right in our constitutional tradition that is absolute has no basis in history or law.

No right in our tradition is absolute. Nobody gets to shout fire in crowded theater, and anyone who thinks that freedom of the press protects a right to publish child pornography simply lacks a basic understanding of American constitutional law.

Nevertheless, those using the Second Amendment to justify their right to have high-powered guns with high-capacity gun magazines might be accommodated under an interpretation of the Constitution that would have been applied by our Founders, even as Connecticut considers stricter gun rules.

A broad political consensus has emerged in Connecticut on reforming our state's gun laws. Strengthening safe storage laws, requiring background checks for all firearms sales not covered by the existing system, and providing law enforcement with the necessary tools to track and prosecute illegal gun trafficking are at the core of this consensus.

These policies enjoy broad popular support across party lines, and even poll strongly among most Connecticut gun owners. This consensus starts to break down over new regulations of "assault weapons" or what gun manufacturers and the Newtown-based National Shooting Sports Foundation calls " modern sporting rifles."

Whichever label you prefer, the reality is these guns are tactical weapons derived from military models. The General Assembly must also accept that these weapons are very popular among gun owners. How can we fashion a set of policies that make us all safer and acknowledge the popularity of these powerful weapons? The wisdom of the Founders might offer a solution.

Gun rights advocates are quick to mouth the words of the Second Amendment, but it is time we honor its whole text: "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."

The well-regulated militia that helped us win independence from Britain was not a random bunch of good guys with guns fighting tyranny. We need to move beyond this "Red Dawn" fantasy. The Founders had another term for a bunch of guys who thought they were the good guys and went around with military weapons: an armed mob.

The Second Amendment's "well regulated militia" has had a long history of being controlled by the individual states and was subject to extensive government regulation long before the adoption of the Constitution. In Colonial and revolutionary America, many of the militia's weapons were stored in public magazines and every state and locality recognized a right to regulate the safe storage of gunpowder.

The legislature ought to require that all tactical weapons owed by Connecticut citizens be stored locked up at a firing range because the main civilian use of these weapons is target shooting. Such weapons are not essential for home defense or hunting.

If an individual is adamant about keeping such a weapon at home, the gun needs to be registered, safely stored and the owner ought to be required to pass a much more rigorous background check. None of these provisions runs afoul of the Second Amendment and all are true to its spirit.

Owners who wish to keep such weapons at home also need to obtain firearms insurance that fully reflects the potential carnage the weapons can cause. Requiring insurance would provide a less threatening enforcement mechanism. Rather than having the government inspect weapons to make sure they are properly stored, we can leave this task to the insurers. If owning such a weapon truly poses almost no cost to society, the actuaries will sort it out, and the additional costs borne by gun owners will be modest. It is easy to forget that under our system, we all bear the astronomical cost of gun violence.

The text of the Second Amendment not only ties the right to bear arms to a well regulated militia, but it links arms bearing to a larger ideal — the security of a free state. Our current lax gun laws only benefit criminals and those selling guns.

It is time to enact laws that protect all Connecticut citizens, not just gun owners. Living in a society where schools are on perpetual lockdown is not a free state, it is a form of tyranny and it is antithetical to the Second Amendment.

Saul Cornell of Redding is a Second Amendment expert and constitutional historian and the Paul and Diane Guenther Chair in American History at Fordham University.