Perhaps it's because the victims this time included 20 innocent first-graders. Or maybe it's the cumulative impact of all the unbelievably horrific mass shootings our country has witnessed Columbine, Virginia Tech, Tucson, Aurora and now, Newtown. Regardless of the reason, we as a nation seem to have finally reached a tipping point when it comes to gun violence.
Many Americans have had enough and are demanding that our political leaders do something to end the senseless bloodshed. Fortunately, the Second Amendment is not an obstacle to a variety of strong laws to reduce gun deaths and injuries, including laws regulating who may have guns, what type of weapons they may have, and where they may have them.
President Barack Obama, who was conspicuously silent about gun violence during his first term, is now expressing strong support for laws banning assault weapons and requiring background checks on all gun buyers. Neither of these laws should be controversial.
Military-style assault weapons, the kind used within the last six months to gun down children in Newtown and moviegoers in Aurora, have no place in civilian hands. They serve no purpose except to kill a large number of people in a short amount of time. Universal background checks are a simple and essential way to prevent criminals and other prohibited persons from buying guns. Under existing law, however, only guns sold by licensed dealers are subject to background checks, leaving an estimated 40 percent of all firearm sales subject to a dangerous "no-questions-asked" policy.
Although an assault weapon ban and universal background check requirement would be crucial first steps in strengthening America's notoriously weak gun laws, their introduction would no doubt be met with a chorus of claims that they violate the Second Amendment. They do not. In fact, the courts have made clear that the Second Amendment is a barrier to very few gun laws.
From 1791, when the Second Amendment was adopted, until 2008, not once did the U.S. Supreme Court find any law regulating firearms to be unconstitutional.
In 2008, in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to have guns, rather than it just being a right to possess guns for the purpose of militia service. In a narrow 5-4 ruling, the court held that the Second Amendment guarantees the right of responsible, law-abiding individuals to possess an operable handgun in the home for purposes of self-defense.
The Supreme Court explicitly found that the right conferred by the Second Amendment is not unlimited, and should not be understood as "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
Among a non-exhaustive list of other limitations, the court recognized that the Second Amendment does not preclude laws prohibiting the possession of firearms by felons and the mentally ill or banning "dangerous and unusual weapons" such as M-16 rifles exactly the types of laws Congress is most likely to consider in the wake of the Newtown massacre. In other words, stricter background check schemes and bans on assault weapons and large-capacity ammunition magazines will face no problems under the Second Amendment.
In fact, although the Heller case opened the floodgates to lawsuits challenging federal, state and local gun laws nationwide, those lawsuits have been almost uniformly rejected by the lower courts. In more than 600 decisions, the courts have repeatedly upheld a wide variety of laws to reduce gun violence, including those banning particularly dangerous guns like machine guns and assault weapons, prohibiting the possession of firearms by felons and domestic batterers, regulating the carrying of guns in public, and requiring the registration of guns and licensing of gun owners.
In short, the Second Amendment really has nothing to do with the laws our nation so desperately needs to stop the 30,000 gun-related deaths and 70,000 gun-related injuries needlessly suffered each year in communities throughout America. It's not about our Constitution it's about common sense, human decency and political courage.