Individual rights and the common good

Originally Appeared in : 9721-10/12/17

I have been asked to reflect on the latest mass shooting in this country: last Sunday’s massacre in Las Vegas that left 58 innocent concert-goers dead and over 500 wounded after Stephen Paddock opened fire on them with an arsenal of semi-automatic weapons, fitted with bump stocks that enabled them to be used as if they were automatic weapons (which are banned from civilian use). Had he not been stopped by protecting police, Paddock could potentially have taken out the whole crowd of 22,000 people.


I could not help but contrast this American tragedy with the recent jihadist attack in Marseille, France. The attacker wielded the knife and killed two innocent women in the train station before he was killed by gendarmes. In both cases, there seems to have been only one attacker and the police acted quickly and efficiently. But in the American case there were over 558 casualties, while in the French case there were only two. 


The difference was the weapons used. French laws and procedures have resulted in the near impossibility of anyone legally obtaining a semi-automatic or automatic weapons, let alone an arsenal of them. So, a knife was basically the only weapon available to the jihadi. By contrast, while automatic weapons are banned in the United States, semi-automatic weapons are available, with whatever restrictions exist being easily circumvented. Bump stocks, which neither I nor most lawmakers had ever heard of until last week, are apparently not on the ATF’s list of prohibited items.


I am old enough to remember Charles Whitman’s sniper attack at the University of Texas in Austin that left 35 people dead in 1965, two years after President Kennedy was gunned down in Dallas in daylight. As my aunt and uncle and five cousins lived in Austin, which we had visited a few years before, my family was very concerned about them and made frenzied phone calls to make sure that they were all unharmed. 


Even at 16 years old, I thought that something was very wrong that a man with a brain tumor could so easily obtain lethal weapons and access a tower as his sniper’s nest. I expected a rational dialogue concerning public safety and the easy access to lethal weapons in this country, but such a dialogue is still considered “premature,” 52 years and countless assassinations and mass shootings later.


As a student of American history and an admirer of our founding documents – the Declaration of Independence, the Constitution of the United States, and the Bill of Rights – I fully realize the challenge of reconciling the rights of individuals guaranteed by these documents with the common good of all. And I generally agree with those who interpret the Constitution strictly in terms of original intent. But I also recognize the Constitution itself provides it to be amended, which it has been 27 times since 1787.


So, I find myself torn between my reluctance to alter our founding documents and my revulsion and downright fear of the plague of lethal weapons that has infected this great nation throughout my life. It is said that the 320 million people living in this country possess 310 million guns, a higher percentage than that of any other country in the world.


The Second Amendment reads: “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.” As a student of history and language who is not a lawyer, I would have thought that the first phrase (“As well regulated militia”) would govern the second; in other words that there is a relationship between protecting the common good, which is the purpose of the militia (for example the National Guard), and the right to keep and bear arms. This resonates with my Catholic understanding of use of violent means in the “legitimate defense of persons and societies.” While murder (the offensive killing of another who poses no threat and is therefore an “innocent”) is prohibited by God’s command, killing an unjust aggressor in an “act of self-defense can have a double effect: the preservation of one’s own life; and the aggressor’s death... The one is intended, the other is not” (Catechism of the Catholic Church, 2263). 


But to my surprise, I find that the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), “held, in a 5–4 decision, that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home.” Ironically, Justice Antonin Scalia, usually thought to be a strict constructionist, wrote the decision, which seems to be a very “loose construction,” at variance with the original text of the Second Amendment.


Now there are calls to “repeal and replace the Second Amendment,” calls that I would’ve rejected out of hand except for the fact that the Supreme Court has effectively amended the amendment to separate an individual right from the common good.


The National Rifle Association surprised many by asking Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to add bump stocks to its list of prohibited items. While many welcomed this initiative and others have pointed out that asking the ATF to take action implicitly excludes the national debate that would happen if Congress were to discuss this prohibition or others that might be suggested on the floors of the House of Representatives and the Senate. 


It also seems to me that just as freedom of speech, guaranteed by the First Amendment, is recognized as not absolute – there are laws against libel and slander and the Supreme Court upholds the idea that no one has the right to shout “fire” in a crowded theater that is not set on fire – so, too, the Second Amendment is not absolute, given that individuals are not allowed to possess nuclear weapons, the mother of all bombs, many military weapons, etc., for potential use against the common good.


I would prefer for the long-delayed national debate to take place by our elected representatives and senators, and for them to fashion a reasonable set of laws to protect innocent people from massacre, for the president to sign such bills into law, and for the courts to rule on the constitutionality of the same, construing the Second Amendment strictly rather than loosely. Otherwise there will be increasing demands to repeal and replace the Second Amendment, and understandably so. But I fear that doing so would open up a Pandora’s box of other amendments being proposed that could undermine the republic.


Father Douglas K. Clark STL is pastor of Saint Matthew Church, Statesboro.

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