• April 14, 2021

NATIONAL VIEW:The Constitution, Supreme Court set a high bar for gun control - Odessa American: Guest Columns

e-Edition Subscribe

NATIONAL VIEW:The Constitution, Supreme Court set a high bar for gun control

THE POINT: Constitutional rights cannot be overridden by a majority vote in Congress.

Font Size:
Default font size
Larger font size

Posted: Monday, March 1, 2021 2:30 am

On February 14, President Biden marked the third anniversary of the deadly shooting incident at Marjory Stoneman Douglas High School in Parkland, Florida, with an announcement that he is calling on Congress to enact “commonsense gun law reforms.”

As always, the details matter. The president defined “commonsense” as a requirement for background checks on all gun sales, a ban on “assault weapons and high-capacity magazines,” and an end to “immunity for gun manufacturers who knowingly put weapons of war on our streets.”

The U.S. Supreme Court held in 2008, in the District of Columbia v. Heller decision, that the Second Amendment right to “keep and bear arms” is an individual right that is not contingent on service in “a well-regulated militia.” That means the U.S. Constitution limits the federal government’s power to pass laws restricting that right.

Exactly where are the limits? That’s always a matter of interpretation. The Heller opinion, written by the late Associate Justice Antonin Scalia, held that the District’s law prohibiting the possession of handguns was over the line, as was its law requiring residents to keep their lawfully owned, registered long guns “unloaded and dissembled or bound by a trigger lock or similar device” unless the guns were located in a place of business or in use for lawful recreational activities.

Scalia wrote that the handgun ban “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” for the “lawful purpose” of “the inherent right of self-defense.” Under any standard that the court has used, he wrote, “banning from the home ‘the most preferred firearm in the nation to keep and use for protection of one’s home and family,’ would fail constitutional muster.”

So if the president’s definition of “assault weapon” and “weapons of war” includes commonly owned firearms and magazines, it’s likely that new laws banning these or seeking to create new legal liability for their manufacturers will be found unconstitutional by the U.S. Supreme Court, should these laws be challenged.

And there’s no doubt that such laws would be challenged. After Biden’s statement was released, the Firearms Policy Coalition responded, denouncing what it called “unconstitutional and immoral policies including bans on common semi-automatic firearms and ammunition magazines.” A number of lawsuits over various state laws related to firearms ownership are already working their way toward the high court.

The Heller decision was 5-4, with Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Steven Breyer in the minority.

Former President Donald Trump campaigned as a staunch defender of Second Amendment rights, and it would not be surprising, to say the least, if the three justices he appointed to the high court share that view to some extent. Associate Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett likely have created a solid majority to strike down broad bans on semiautomatic weapons and laws that flatly prohibit law-abiding citizens from exercising the right to carry a gun. In Scalia’s words, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

That won’t stop the Democratic majorities in Congress, together with the president, from enacting doomed laws, or from sending fundraising letters attacking their opponents. It’s always about the next election. It remains a fact that constitutional rights cannot be overridden by a majority vote, except on the Supreme Court.

Odessa, TX

Current Conditions

Humidity: 73%
Winds: ENE at 13mph
Feels Like: 52°

Your Extended Forecast


High 57°/Low 51°
Thunderstorms developing late. Lows overnight in the low 50s.


High 70°/Low 58°
Thunderstorms early. Highs in the upper 60s and lows in the upper 50s.


High 78°/Low 40°
Mostly cloudy. Highs in the upper 70s and lows in the low 40s.


High 56°/Low 39°
Mostly cloudy. Highs in the mid 50s and lows in the upper 30s.
Online Features

Pet Central


Having a pet is a lot of responsibility, and we’ll help by giving you lots of tips and tricks! More >>



Our fitness articles will help teach you how to work out with gym- and home-based exercises. More >>



Enjoy the crosswords challenge in our free daily puzzles, from the harder Sunday crossword to the quicker daily. More >>



Every Sudoku has a unique solution that can be reached logically. Enter numbers into the blank spaces so that each row, column and 3x3 box contains the numbers 1 to 9. More >>

  • ALL-ACCESS: Subscribe to our e-edition and premium website at myoaoa.com.
    You can read your daily newspaper without taking a walk to the driveway.
    Look back at yesterday's newspaper, or issues from months ago with our archive feature.
    Call circulation at 432-337-7314 to sign up today.