The forum is designed to foster a civil discussion among those holding divergent views on gun violence and its causes and possible solutions. Dennis Swain, an attorney in Beulah and a former Manistee County prosecutor; and Dr. Lia Gaggino, a Kalamazoo pediatrician and board president of the Michigan Chapter of the American Academy of Pediatrics, present their views on the issue in this column.
The sometimes rancorous debate over gun violence has taken center stage once again. How we keep bad men from doing bad things to innocent people is one of history’s most enduring questions. Unfortunately, there are no fast and easy answers, and there are no panaceas.
In Heller v. District of Columbia, the Supreme Court of the United States held that the right to keep and bear arms is a personal, individual Constitutional Right. From a legal standpoint, that means that it carries the same weight as freedom of speech, freedom of the press, the right to be free from unreasonable searches and seizures, the right to due process of law, and so on. The court later held that the Second Amendment is totally incorporated within the 14th Amendment and is binding upon the states. It is the supreme law of the land.
The Heller majority recognized that the Second Amendment rights may be appropriately regulated. How and why such regulation may occur is very important, and it must be understood if this debate is to remain civil and productive.
Since the right to keep and bear arms is a personal and individual right conferred upon citizens by the Constitution, it must be first understood that any legislation that attempts to infringe upon those rights is presumed to be unconstitutional.
The government, and not the citizen, then has the burden of proving that there is a compelling state interest that justifies the regulation. That interest must be applied narrowly. It may only be applied in the furtherance of limited interest of the state, and it must be applied in a way that preserves the constitutional liberty being protected.
Some will take issue with this thesis, but it is rooted in very solid American constitutional law. The same presumption and test applies to your right to speak, your right to worship as you choose, your right to peaceably assemble, your right to vote, your right to be free from unreasonable searches and seizures by government agents, your right to a fair trial, your right to legal representation, your right to due process of law, and your right to be left alone. Yes, that individual right to privacy that assures us that we may make important personal choices without undue interference by the government carries the same presumption of unconstitutionality and compelling state interest test with it.
Before we decide to willy-nilly tear down a constitutional guarantee that we do not understand, and that we do not like, let us ask ourselves this question: "If we allow the government to breach the firewall of the Bill of Rights this time, what justifies our belief that another piece of the firewall will not be the target the next time?"
Dr. Lia Gaggino:
The Michigan Chapter of the American Academy of Pediatrics is a diverse group of more than 1,700 pediatricians. Our mission is to identify, develop and manage opportunities to improve the health, well-being and safety of the children and young adults in Michigan, with an emphasis on prevention.
Gun-related violence affects the safety and well-being of Michigan’s children and young adults. A child may be a victim, perpetrator or witness. Our hope is that we can respect the rights of the legal and responsible gun owners while improving youth safety and well-being. We view this as a shared goal with diverse groups of people who all have a stake in the health and well-being of Michigan youth.
As pediatricians, we advocate for the reduction of gun-related injuries and deaths of children and youth, just as we have done in attempts to reduce motor vehicle-related injuries and deaths.
We support several measures to reduce gun-related injuries and deaths in Michigan. Regarding firearm safety, our recommendation is to require mandatory background checks and waiting periods for all firearm purchases; eliminate the gun-show loophole; enact an assault weapon ban and ban on high-capacity magazines; enact consumer product regulations regarding child access, safety and design of guns; and continue to advocate for trigger-lock use and safe storage of firearms and ammunition.
In the area of access to mental health care, our recommendation is to improve identification and treatment of mental illness in children and teens, improve access to ongoing management for those identified with mental illness, and educate families of children with mental illness about the potential hazards of firearm access.
Lastly, we support efforts to reduce exposure to violent media content and advocate for increased child-positive media content.