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Editorial Advisory Board: When guns harm democracy

Editorial Advisory Board//December 15, 2022

Editorial Advisory Board: When guns harm democracy

By Editorial Advisory Board

//December 15, 2022

The Supreme Court in District of Columbia v. Heller considered the Second Amendment to be an offshoot of Anglo-American common law. And as such, Heller made clear that the government had the authority to regulate weapons; the right to keep and bear arms was subject to what it referred to as longstanding prohibitions, holding, “like most rights the right secured by the Second Amendment is not unlimited.”

Justice Antonin Scalia, writing for the majority in Heller, communicated clearly the Second Amendment did not confer a right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Since Heller, the Supreme Court has expanded gun rights to include the right to carry concealed weapons beyond the home and into the public for self-defense. The right to carry guns for self-defense, however, does not include the right to go armed to the terror of the people. It never did.

The common law of England, as far back as the 14th century, and common law of the American colonies have regulated arms to not only prevent physical injury but also to secure the public peace and prevent terror resulting from their mere display under circumstances that would cause fear, or terror.

In the 14th century, armed men not in the employ of the king were not allowed in his presence. In Virginia, no man was permitted to come before a court or its ministers with arms, nor use arms to terrorize citizens.  Under English law, the bare circumstances of bearing arms in public created a presumption of a warlike force. The Massachusetts colony had similar laws.

Yet today, heavily armed gunmen attend political rallies, patrol city streets and even enter state legislative buildings while the legislature is in session. They terrorize with their weapons; they create fear.  Some claim that they have the right to bear arms in public regardless of the terror that results.

Public safety and breach of the peace are not the same as physical harm and injury. Public safety as well as preventing physical harm must also be a goal of modern gun regulation. Such a goal helps protect the constitutional order and provides a feeling of security to citizens within their communities.

Imagine speaking ill of certain politicians at rallies attended by their heavily armed supporters. The  government’s interest in regulating the ability to carry any weapon, in any manner and for any purpose is strong, and it is needed to protect against intimidation in addition to physical harm.

Death threats and plots to kidnap a sitting governor, intimidation of state legislators in their state houses by the appearance of heavily armed hecklers, and the shutting down of a state legislature as a result are harms to democracy. It is not lost on anyone present at these events that guns in the hands of these attendees establish clearly that they possess on the spot the political power to stop the process, whether it be the debate of ideas in a public square or the debate over a proposed law in the legislature. Their armed presence at such events is traumatizing, and it is intended to be.

Lawmakers in Maryland and in other states must focus not only on the physical threat that openly carried guns present, but also on their threat to our democratic ways when carried to intimidate or under circumstances that are likely to intimidate.

To avoid years of expensive wrangling in the courts, and likely the payment of millions of dollars in legal fees should the enacted laws be held unconstitutional, the state legislature with help from the attorney general must look to historical precedent for the basis to regulate guns to prevent both injury and breaches of the peace. There is enough historical precedent to do so.

Editorial Advisory Board members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.


James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.





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