Why is the Second Amendment more important than all other rights?

Spoiler Alert: It’s not, despite what some might want to sell you

By Mike McGann, Editor, The Times

Much has been said about a recent event at Patton Middle School in Unionville in which a parent left a gun in an unlocked, running car in the school’s parking lot.

While I’m not sure that the ending — the unidentified parent involved apologized to the school district and community, surrendered his carry permit, agreed to sell his weapon and will take weapons training classes but face no criminal charges — will satisfy everyone, it strikes me as fair.

Yes, I know that gun rights advocates will argue that folks should be allowed to bring guns anywhere they choose if they possess them legally, while others will express anger at both the lack of criminal charges and the failure to reveal the individual’s name.

But one must strike a balance of competing, not absolute, rights.

For the record: state law is disappointingly murky on the subject. I spoke with former Democratic State Rep. Tom Houghton recently about the way the original law was drafted. Houghton is a defense attorney in West Grove and I figured that he would be able help me better understand the law as written.

He said he thinks an argument can be made that the way Title 18, Section 192 is written could be interpreted to say that anyone who lawfully possesses a gun can carry one on school grounds. While one part of the law specifically prohibits possession of a weapon on school grounds, another section says it’s OK for law enforcement and other “lawful purposes.”

“As a criminal defense attorney and former state representative, I’d say that if society wants a clear prohibition, that that language (Section C) needs to be deleted from the statute,” Houghton told me. “A legislator needs to amend the language to remove the ‘other lawful purpose’ language.”

That is, if the legislature wishes to make it unquestionably illegal to have guns on school property.

“The argument to keep the language – a teacher who keeps a shotgun in the trunk who is going hunting after school,” Houghton explained. “That is the real issue. Do they have to be inconvenienced – to have to run home first after school to grab their gun?”

There is an argument to be made there, I suppose, but most would agree that merely inconveniencing someone probably doesn’t measure up to public safety arguments. It is also a moot question, likely. No Democratic amendment to the law can pass and it seems highly doubtful any Republican will be willing to take the political risk to offer the change.

So, the fact is, there’s a decent chance that it is possibly legal for folks to carry guns and other weapons on school grounds. Personally, I don’t think that should be the case, but at minimum, the law as written offers a lot of wiggle room.

I think it does highlight a bigger argument: when rights conflict, which ones are more important?

Do Second Amendment rights outweigh Fifth Amendment rights — i.e. the right to life? I think, as do most folks, that there can be some limits on gun owners and that banning guns at school is reasonable. The argument of using a gun in self-defense, engaging in some sort of pitched shoot out while surrounded by students is even more disturbing than it is non-sensical, yet it is an argument advanced in this instance by some.

But all rights have limits.

For instance, there are limits on the First Amendment. Can I yell “fire” in a crowded theater? No. Can I say obscenities on a broadcast TV or radio station? No. Can I publish information deemed “classified” by the government? No. Some things have been found by the court to be obscene, others threats, all of which, arguably, could be protected First Amendment speech, but instead are treated as criminal offenses.

Clearly, there are also limits on the Fourth Amendment. I can say personally, I didn’t need to have my groin groped at Philadelphia International Airport by the Transportation Safety Administration a few months back, clearly a search without probable cause, in clear violation of the Fourth Amendment. The National Security Agency’s use of cell phone records is another encroachment on Fourth Amendment rights, in the name of public safety, or so the argument goes.

Abortion and birth control bans and restrictions arguably violate the right to privacy.

Police seizure of property — even of those ultimately acquitted — continues unabated today with little in the way of complaint which violates both the Fourth and Fifth and 14th Amendments, despite not just being unconstitutional, but clearly morally wrong, too.

The 14th Amendment requiring “equal protection” is violated constantly, if interpreted in a very literal way.

So, explain to me again why Second Amendment rights are more sacred?

Well, I guess that’s sort of the point: they’re not.

Either we apply common sense limits as well as changes in situation and technology since the 1787 writing of the U.S. Constitution to these rights — basically what the courts have done since Marbury v. Madison — or interpret them all strictly.

So, no limits on gun ownership? Fine. Kick the TSA out all airports, immediately. End drug-related property seizures (and lay off thousands of law enforcement officers funded by such seizures), really enforce “due process” and “equal protection” which would make pretty much every state’s education funding formula illegal and so on.

Or, we can be pragmatic and apply common sense.

When varying rights collide — the right to life is pretty clearly spelled out in the Fifth Amendment — compromises need to be made accommodate them. What’s the issue with universal background checks and closing gun show loopholes if they keep people safe (the same argument used for the TSA)? Ban guns from school property? Yes. If we can institute higher penalties for drug possession near and on school grounds (to keep kids safe), why can’t we — and school districts — prohibit guns at school?

Maybe the time has come to embrace common sense again, instead of extremists’ (left and right and especially those who make money from their respective special interest groups) breathless claims about protecting our rights.