The op-ed followed the Nov. 5 massacre of 26 people by a gunman who entered a Texas church during a Sunday service. This week a gunman in California opened fire in an elementary school and other locations, killing four people; before his rampage he killed his wife.
The California incident was the 17th mass shooting in the United States this month, according to the Gun Violence Archive, which defines a mass shooting as a single event in which four or more people are shot and/or killed, not including the shooter.
Wrote Wehle: “We can’t productively address the issue of gun regulation if we don’t understand the constitutional ground on which the Second Amendment rests.”
Among the myths is the notion that “arms” includes handguns, rifles and semi-automatic weapons.
“This one is off,” Wehle wrote. “’Arms’ is not defined in the Second Amendment itself, but would anyone seriously argue that it means your neighbor can store plutonium in his garage and make a nuclear bomb to protect his family? Of course not.”
In 2008, the Supreme Court found, in Heller v. District of Columbia, that handguns can be kept and used in the home for self-defense.
However, Wehle said, “[t]he court then laid out a bunch of factors that may be important in deciding if something else constitutes ‘Arms’ under the Second Amendment — including whether a weapon is one that musket-bearing settlers would have commonly used, and whether it is ‘dangerous and unusual.’
“The court also carved areas where the right can be limited — such as for mentally ill persons and felons, or in and around schools and government buildings. (The justices don’t even want cameras in their courtroom, let alone machine guns.)”
Concluded Wehle: “The question comes down to this: Does the Second Amendment right to self-defense outweigh the heightened dangers of increasingly lethal guns?”
Learn about Professor Wehle, the author of the forthcoming book The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.