When the Supreme Court issued a landmark ruling in 2008 (Heller v. District of Columbia), many gun owners celebrated what they believed was an affirmation of their right to have virtually any type of firearm kept in their home. At issue in this often cited 2nd Amendment case was an appeal challenging a law in DC which prohibited keeping handguns at home for personal protection. The majority opinion was written by the late Justice Antonin Scalia, arguably the most conservative member of the Court at that time.

What has often been overlooked in Scalia’s scholarly opinion, which analyzed and mostly supported earlier lower court opinions regarding 2nd Amendment rights, were important cautionary statements:

Scalia stated, “Thus we do not read the 2nd Amendment to protect the right of citizens to carry arms for any sort of confrontation (italics mine) just as we do not read the 1st Amendment to protect the right of citizens to speak for any purpose,” (e.g., falsely shouting “Fire!” in a theater).

The many earlier decisions upholding the necessity of maintaining an armed militia did not in Scalia’s mind justify citizens keeping such heavy weapons such as rocket-propelled grenades, machine guns or surface to air missiles in their homes, even though he recognized that a present-day militia limited to pistols and rifles could not hope to defend against an attack by tanks or warplanes. As well, there are other specific restrictions in the language contained in Section III of Scalia’s majority opinion referencing the “long-standing prohibition of the possession of firearms by felons, the mentally ill, …and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Justice Scalia did not live long enough to witness the horrifying murder of large numbers of innocent civilians in Las Vegas with a “bump stock” equipped assault rifle (in effect the equivalent of a machine gun). He could not have anticipated the escalating slaughter of children at Sandy Hook, Parkland and now Uvalde. One can only speculate about whether awareness of this unprecedented and frightening type of firepower in the hands of a disturbed individual might have led Scalia to expand the section on cautions and safeguards in his Second Amendment opinion. Perhaps he might also have become a strong advocate for recent proven life-saving “Red-Flag” laws in many states expanding the power of courts and law enforcement to temporarily confiscate weapons from any individual judged to be at imminent risk of suicide or homicide.

As a lifelong hunter and long gun owner I understand and share the strong feelings of many others in Maine about protection of our rights to hunt and to defend homes and property. But as a psychiatrist I dismiss as excessively paranoid the “slippery slope” argument that virtually any and all precautionary restrictions which can protect lives are merely stealthy incremental steps by a firearm-hostile government to eventually strip U.S. citizens of our Second Amendment rights and confiscate all guns. Some fears fail to pass the straight-face test.

I would urge anyone who champions the Second Amendment and feels grateful for the privileges it supports, to also read and respect the common sense limitations of the Supreme Court’s 2008 Majority interpretation.

— Special to the Press Herald


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