States and the University have the constitutional right to ban guns

TBy Jordan K. Kolar This letter is in response to R. Packett’s July 7 letter to the editor (“More gun talk Ö”). I assume that Packett’s reference to the Fourth Amendment of the U.S. Constitution as support for his “right to self-defense” was a typo on his part. The Fourth Amendment guarantees the right to be free from unreasonable governmental searches and seizures. The Fourth Amendment also contains the requirement that warrants for such searches or seizures may not be issued without probable cause. If any part of the Constitution can be said to provide for a “right to self-defense,” it is the Second Amendment.

In any case, the Second Amendment of the Constitution does not provide for a “right to self-defense.” The Second Amendment protects, arguably, the right of U.S. citizenry to “keep and bear arms.” The Second Amendment does not protect the right of the citizenry to use those arms in their self-defense. In fact, the “right to self-defense” is quite limited, and rightly so. To the best of my knowledge, in all states but Texas, the right to use deadly force is limited to situations where life is being threatened. Some states, like New York, even require that a potential victim take all available opportunities to “retreat” before the use of deadly force in self-defense is permissible. So, in New York, someone who uses deadly force in self-defense without taking a presented avenue of retreat is guilty of murder. It is not unconstitutional for states to restrict the right of its citizenry to shoot each other, even if it is arguably unconstitutional for states to ban guns.

In fact, it is even not unconstitutional for the states to ban guns. Technically, the Bill of Rights in its entirety only binds the federal government. (Thus, the ability of the federal government to ban guns is restricted by the Second Amendment.) The Bill of Rights only binds the states to the extent that the Supreme Court has decided to “incorporate” its provisions against states through the Fourteenth Amendment. The Supreme Court has decided not to incorporate the Second Amendment against the states. Each state may, if it chooses, ban the possession by its residents of all guns, under any circumstances. This does not violate anyone’s constitutional rights.

I mention this last point because Packett suggests that University President Bob Bruininks, and the University, might face liability for injuries suffered by someone as a result of the University’s decisions to ban guns on University campuses. Packett’s logic goes thusly: if the state says I can carry a concealed weapon, but I have to leave the weapon at home when I go to school due to the University’s no-gun policy, and if I’m attacked on campus but the attack could have been thwarted with my gun, injuries suffered in that attack are the University’s fault. However, my points above reveals that this argument rests on flawed logic. Bruininks does not violate our Constitutional rights by banning guns on campus. Therefore, our injury cannot be traced to University action. Therefore, the University would have no liability for any such injury.

Jordan K. Kolar is a University alumnus who lives in Minneapolis.

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