A Supreme Precedent for Gun Laws

In the aftermath of any mass shooting in the U.S., an all-or-nothing rhetoric about guns typically infects the public discourse regarding what ought to be done to prevent such tragedies in the future. In many communities, inhabitants are warned that the government has a hidden agenda seeking to ban all future gun sales and intends to confiscate privately owned firearms. “Obama wants to take your guns away,” we are warned.

The U.S. Supreme Court
The U.S. Supreme Court

Far too many Americans have accepted the all-or-nothing gun law paradigm, and believe that any attempt by government to place even the most modest of restrictions on how guns are acquired, what firearms can be sold publicly, and where they are carried, as an egregious intrusion on a supposedly inalienable right.

With this post, I am not advocating for a specific gun violence prevention policy or regulation, but seek to show a long-standing judicial precedent for firearms regulation. Gun control does not mean gun prohibition. Gun rights activists often conflate the two, perhaps to deter an open and honest discourse on the issue.

In the 2008 landmark case, District of Columbia vs. Heller, the U.S. Supreme Court struck down a Washington, D.C. law that prohibited possession of handguns and required a trigger lock on all firearms while stored in homes (a ruling I personally applaud). In doing so, the Supreme Court affirmed that the Second Amendment protects an individual’s right to possess a firearm for lawful purposes such as in self-defense within the home. In a closely contested decision, with five votes in favor of striking down the law and four against, the conservative majority handed an important victory to gun rights activists. However, the Court’s conservative majority also affirmed that there are sensible limits to the Second Amendment. In writing for the majority, Justice Antonin Scalia, one of the two most conservative judges on the High Court, observed:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Scalia also cited a previous Supreme Court ruling (U.S. vs Miller) upholding “the historical tradition of prohibiting the carrying of dangerous and unusual weapons,” and affirmed that the government can enact such prohibitions.

In the Heller decision, the majority of the Supreme Court, all of whom were appointed by Republican presidents, resolutely affirmed that the Second Amendment has limits. This should come as no surprise because most of our rights have some limitations. Felons cannot vote. In most areas, you must obtain a permit before holding a large demonstration. Zoning laws limit your activities on your private property (try building a small chemical plant on your residential lot and see how quickly the local police stop you). Ever served in the Armed Forces? If so, you know that your right to free speech was severely curtailed the moment you joined. Other restrictions on speech include laws that prohibit the distribution or display of campaign materials near polling places. Broadcast television stations are proscribed from showing indecent programming during hours when children are typically awake. And of course, a person cannot falsely yell “fire” in a crowded theater, with the potential of causing a lethal stampede, without criminal consequence.

All engaged in the gun rights debate ought to remember that with rights comes responsibilities. Restrictions on the 2nd Amendment are there to ensure responsible and safe ownership of firearms. The U.S. Constitution’s preamble affirms the establishment of that document “in order to … insure domestic tranquility [and] provide for common defense.” The Declaration of Independence cites a universal right to life, liberty, and the pursuit of happiness. In the debate over firearms laws, the public’s right to live in safety and domestic tranquility must be balanced against the urge for a limitless right to acquire whatever kinds of arms one desires, and to carry them in whatever locations one chooses. Both the Miller and Heller decisions show a Supreme Court cognizant and appreciative of public safety considerations in deciding how far the Second Amendment reaches. Both decisions support restrictions on “unusual and dangerous weapons,” but leave open a vigorous discussion over where to draw the line.

For some Americans, a limitless right to firearms is almost a religious article of faith. However, members of the Church of Jesus Christ of Latter-day Saints should recognize that the Church itself has placed limits on guns. In an official statement, the Church announced a ban on firearms in most Church-owned properties, noting that “churches are dedicated for the worship of God and as havens from the cares and concerns of the world and that, consequently, lethal weapons, concealed or otherwise, do not belong in houses of worship.” Likewise, the Church-owned Brigham Young University (BYU) prohibits firearms (concealed or not concealed) on its campuses.

As Congress considers proposed legislation that would expand background checks, I hope those involved will not espouse the spurious limitless view of the Second Amendment and will avoid the hyperbole that often accompanies gun rights groups’ lobbying efforts. We can protect individual citizens’ rights to bear arms while at the same time place modest firearms regulations to improve public safety. Supreme Court Justices Antonin Scalia and Clarence Thomas are highly regarded among most deeply conservative constituencies. Those constituencies would be well advised to recall that both Scalia and Thomas, along with the rest of the conservative bloc on the Court, have affirmed that some limits on the Second Amendment must exist in order to ensure responsible and accountable gun ownership and public safety.


  1. Thank you for this article. I appreciate your view and your homework! I am a BYU alumni ’84, and have to say how thrilled I am to see BYU DEMS alive and well! My son found a little bit of home with byu dems 2000-06. No such thing that I was ever aware of while I was there! I might not have been aware of much, though! The gun control debate is one debate/issue my heart and soul feels in a deep way. I have never personally been a victim of a senseless/careless shooting, but my heart feels for those who have.

    Good work!

  2. Aaron, First, I am not sure who you are referring to when you speak of Americans that want a “limitless right to firearms.” There are already some gun laws in place, many of which go unenforced, so there are already some limits. But to suggest that because the church does not allow guns at church and BYU that they have made a stand on limits on gun control is absurd. Argue, as the left is wont to do, about limits to our 2nd amendment rights, but please leave the church out of the debate.

    1. Jary- the Church has clearly made a stand on gun control, inasmuch as they have banned guns on Church property. They have at least nominally joined the debate by taking that specific stand. Now the Church hasn’t taken a stand on any additional gun laws, nor did the article suggest they did. Many, if not most gun rights activists I know believe that any gun laws are an infringement on the 2nd Amendment. The SCOTUS conservatives disagree with that notion and this article is directed towards such gun rights activists. But I’m glad to see you acknowledge that some limits are necessary.

      1. Although Your church puts a ban on firearms in your church, does not mean that a mentally deranged criminal won’t go in there and shoot people. The fact that there are already laws and restrictions against this, and they are not followed by criminals, does not mean we need more restrictions, background checks or regulations. The criminals will never comply. This only leaves you all in the church defenseless and I hope that it will never happen, but it has in gun free zones like theaters, schools etc. My point is, the current laws should be enforced, and are not. If we would put stiffer penalties on illegal gun use, even criminals may think twice before committing a crime with a gun. How about the death penalty. If you use a gun in a crime, you get the death penalty, not jail time. That might work. Would your God allow that?

      2. Aaron, I’m apparently not attending the same church you are. I have personal knowledge that there were many members of the security team at the recent open house of the Gilbert, Arizona, Temple who were packing, and all by design. You wouldn’t go so far as to say that guns are ok when we are protecting GAs but not when the average Latter-day Saint Families are present, would you?

        1. Rick- those aren’t my words, those are the Church’s.

          See the Handbook of Instructions section 21.2.4:
          “Firearms – Churches are dedicated for the worship of God and as havens from the cares and concerns of the world. The carrying of lethal weapons, concealed or otherwise, within their walls is inappropriate except as required by officers of the law.”


          Those members you know who are packing heat are directly violating Church policy, unless they are law enforcement officers. Or perhaps you are indeed attending an entirely different church.

    2. I personally know several members who were packing at a recent stake priesthood meeting, including some stake officers. I felt safer because they were. I don’t understand how you can say the church doesn’t allow guns at church. In some wards there are always people with a weapon, and this is part of the ERP.

      1. “I don’t understand how you can say the church doesn’t allow guns at church. In some wards there are always people with a weapon, and this is part of the ERP.” Rick- those aren’t my words, those are the Church’s.

        See the Handbook of Instructions section 21.2.4:
        “Firearms – Churches are dedicated for the worship of God and as havens from the cares and concerns of the world. The carrying of lethal weapons, concealed or otherwise, within their walls is inappropriate except as required by officers of the law.”


        Those members you know who are packing heat are directly violating Church policy, unless they are law enforcement officers.

          1. That makes sense then. I would feel safer as well knowing that there were armed off-duty police officers in my congregation.

    1. Jon, I heard about that- if you take a look at the article, that study focused specifically on “gun bans,” not on all forms of gun laws. The study did not look at background checks, straw trafficking regulations, etc. Studies have shown that background checks work. The measures I’ve discussed in the following post would go a long way to combat gun violence: http://www.mormondems.com/archives/487

      1. There will always be mentally deranged people that will get their hands on a weapon to do harm to others. No matter how many laws or background checks you do. All this bureaucratic garbage will only affect Law Abiding Citizens and will not in any way control criminal behavior or the mentally deranged. Just leave the Media out of covering all the violence and shootings, and report on how many lives are saved everyday by someone who stops a criminal with a gun. More people die by the hands of doctors, or drivers of cars than by guns. We need our guns, especially those of us who live in rural areas. What you really need to do is close the borders and monitor the illegal criminals who have made it into this country due to the lax security. There are plenty of laws on the books that need to be enforced before you implement more restrictions on the 2nd Amendment.

        1. John- thanks for reading and taking the time to comment. I’m very glad to see that you tacitly agree with Justice Antonin Scalia that the 2nd Amendment right is not unlimited. Most Americans agree that going through a background check, which often can be completed in a matter of minutes, is not anything close to an undue burden on law-abiding citizens. In fact, most gun-owners and NRA members agree with this point. The fact is background checks have been proven to stop some criminals and dangerously mentally-ill persons from acquiring guns, as my co-editor has shown here (http://www.mormondems.com/archives/410). President Ronald Reagan was strongly in favor of robust background checks, he himself being a victim of gun violence. Unfortunately, the gun lobby has ensured that the background check laws are loophole-ridden, so that many legal purchases of firearms occur without any check against the NICS database.

          You say you need your guns, especially in rural areas. That is completely fine. No one is proposing to take them away- not President Obama, not even Michael Bloomberg. I fear that you’ve bought into some of the fear-mongering perpetrated by the gun-lobby to make you think that gun law advocates like myself want to take your guns. Nothing could be further from the truth. I want to preserve my right to bear firearms as much as any guy out there. But I also want to protect my children, by ensuring we, as a society do our best to keep guns out of the hands of dangerous criminals and the dangerously mentally ill. As I’ve proposed here (http://www.mormondems.com/archives/487) we can do this without any sort of gun bans, but simply by strengthening the background check system and cracking down on FFLs and other gun dealers who break the law. The plethora of laws on the books are too loophole-ridden and allow nearly 40% of all gun sales to occur without any kind of background check at all.

          1. That’s not true. The laws on the books need to be actually enforced. The problem is, there is not enough money for the POST checks and enforcement, for the departments to spend time and follow the paper trail. The funds are just not there. There are enough laws and background checks, and the loopholes you speak of are the unfunded amount of time for the law enforcement to follow up on the applications. What is the problem here? It is time and money.

        2. John, your illogic is reaching epic proportions; your essential point here is that, because laws against mentally ill possessing guns can’t be 100%, then nothing should be done. That’s utter garbage.

          No one CAN know how many crimes are prevented by armed citizens, because no one TRACKS it. It’s all anecdotal — I used to read them in ‘The American Rifleman’ years ago, trust me.

          As others have said, NO ONE’S COMING FOR YOUR GUNS; and I agree that 3-4x as many people die from auto collisions every year than guns. But that makes NEITHER “okay”. BOTH need to be handled responsibly.

          Given the choice, I’d LIKE to have a couple rifles and a handgun; but I don’t have the $$ to just BUY them, nor can I have them in my home, as my extended family includes one with a record. That’s life.

          I’m really “meh” on assault weapons, but I’m really AGAINST online ammo sales. I also think gun owners should, like drivers, be required to carry INSURANCE for catastrophic events. Document some training with them, show the insurance, and you can buy what you’re qualified to use.

          As you also said, enforce the laws already on the books — for guns and drivers, I’m good with that. Put an end to speeders telling cops, upon being stopped for 50 in a 30, “Why are you stopping ME? Why aren’t you out busting drug dealers and gangbangers?” Take the ticket and STFU.

          Living in a free country does not mean you can pick and choose what laws you obey.

          1. We don’t and can’t pick and choose what laws to obey. The rules and laws are there for all of us to obey and follow, for our own safety. Safety is number one. That will ensure that all of us that are following the rules will remain safe. Then, you have the people that don’t give a ****. They will abuse the system, violate the rules, the laws, and think they can get away with it. We all know it will catch up to them eventually, but sometimes we get caught in the middle, in the wrong place at the wrong time. If you can be prepared for that scenario, you may get another day to enjoy. Sometimes you may get caught up in a bad situation, without the proper protection. That is why we have rights given to us by our Creator which are unalienable, and shall not be infringed. Our Lawmakers took an oath to uphold these rules and all I want is for them to obey them, protect them, and not make more laws and rules which chip away at our Rights. When they do propose rules and laws which violate our Rights, they are breaking the Law and should be removed from office for violating their OATH.

    1. You really want to post a link that depends on discredited evidence from 19 years ago, and rubber-stamped by the CDC, instead of actually DONE by them? That’s weak. PRO-GUN folks don’t give Kleck any respect, come ON, now.

  3. 1. People who support gun rights have no reason to trust gun control advocates. Just like voting rights, abortion rights, or marriage rights, supporters of rights have seen opponents try to chip away at the free exercise for decades. I support all rights. In fact, I came to support of gun rights because I don’t want to see any right curtailed.

    2. What gun control does mean is adding burdens on the law-abiding. Criminals will always get guns in this country. They have no problem getting drugs, despite decades of outrageous penalties and abuses of other rights. What makes you believe that we can disarm bad people? Consider also that we have more than 300,000,000 guns already here. Gun control merely creates a black market, thereby increasing the value of those guns. Most of them are unregistered, and many have changed hands several times since the original sale from the manufactuerer.

    3. The Miller ruling was a particularly bad case. The defense didn’t even show for the hearing, since Miller ran out of money and disappeared, so the side opposing the government’s position wasn’t heard. And the Court made a factual error. The ruling states that a sawed-off shotgun has no militia purpose, despite the fact that such weapons were used in the trenches of W.W. I by our soldiers. But if the Second Amendment protects weapons that are used by the militia, then fully automatic firearms should be legal.

    Additionally, consider many rulings of the courts over the years: Dred Scott, Plessey v. Ferguson, Kelo v. City of New London, Bush v. Gore, and Citizens United as some examples. Courts often make bad rulings.

    4. But militia service isn’t relevant, anyway. Read the grammar of the sentence. It’s in the form of an “if p, then q” statement. As the truth table for that argument shows, The sentence as a whole is true so long as q is true. P can be false, but the sentence still be true. And the modifier, “well regulated,” applies to the militia, not to the people. The people are identified as the ones who have the right. Note also that the amendment does not create the right. It recognizes a right that already existed.

    5. Spiderman quotes aside, yes, rights come with responsibilities. I’m required not to harm innocent people in the exercise of my rights. But gun control is about removing the ability to act, not about holding me responsible for my actions. I support responsibility. I oppose prior restraint. And please don’t ask me about nuclear weapons. There is no possible use of a nuke that wouldn’t harm innocents. Guns, by contrast, have many legitimate uses that hurt no innocent person.

    Generally, I should be free to do anything I please, so long as I harm no innocent person. A government that is powerful enough to force me to make approved choices about my own life is powerful enough to violate many rights.

    6. The end result of gun control would be a country in which criminals and the wealthy and powerful are armed, while the rest of us are stripped of weapons. As a person who supports the little guy–call me populist, progressive, libertarian, whatever–I can’t support legislation that will harm ordinary citizens while achieving no good aim. I’ve seen no restrictions or limits that have any evidence that they would do any good here. Gun control is nothing but magical thinking.

    7. Our rates of violent crime have been on the decline since the late 80s. That’s true in states with strict gun control and in states with loose gun laws. And nationwide, gun laws have loosened, but again, no increase in violence has been the result. This is not meant as a claim of cause and effect. But what this evidence does do is show that the gun control narrative of more guns equaling more crime is false.

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