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Essay About 2nd Amendment

Essay/Term paper: The second amendment and the right to bear arms

Essay, term paper, research paper:  Gun Control

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WORKS CITED

[1] Cottrol, Robert, ed. Gun Control and the Constitution: Sources and Explorations on the
Second Amendment. New York: Garland Publishing Inc., 1994
[2] Dowlut, Robert. The Right to Keep and Bear Arms in State Bills of Rights and Judicial
Interpretation. SAF 1993
[3] Freedman, Warren. The Privilege to Keep and Bear Arms. Connecticut: Quorum Books,
1989
[4] Hickok, Eugene Jr., ed. The Bill of Rights: Original Meaning and Current Understanding. Virginia: University Press of Virginia, 1991
[5] Kruschke, Earl PHD. Gun Control: A Reference Handbook. California: ABC-CLIO Inc.,
1995
[6] Image on the cover page taken from TIME. Photographer unknown.
[7] Prune Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)
[8] Zimring, Franklin E., Gun Control. Encyclopedia Encarta: 1993-1997 Microsoft Corporation.








Throughout the years there has been an ongoing debate over the Second Amendment and how it should be interpreted. The issue that is being debated is whether our government has the right to regulate guns. The answer of who has which rights lies within how one interprets the Second Amendment. With this being the case, one must also think about what circumstances the Framers were under when this Amendment was written. There are two major sides to this debate, one being the collective side, which feels that the right was given for collective purposes only. This side is in favor of having stricter gun control laws, as they feel that by having stricter laws the number of crimes that are being committed with guns will be reduced and thus save lives. However while gun control laws may decrease criminals" access to guns, the same laws restricts gun owning citizens who abide by the law; these citizens make up a great majority of the opposing side of this argument. These people argue that the law was made with the individual citizens in mind. This group believes that the Amendment should be interpreted to guarantee citizens free access to firearms. One major group that is in strong opposition of stricter gun control laws is the National Rifle Association (NRA). The NRA argues that having stricter gun control laws will only hinder law-abiding citizens. The final outcome on this debate will mainly depend on how this Amendment is going to be interpreted.
The Second Amendment of the Bill of Rights states:
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (Amendment II 1791)
This debate has produced two familiar interpretations of the Second Amendment. Advocates of stricter gun control laws have tended to stress that the amendment"s militia clause guarantees nothing to the individual and that it only protects the states" rights to be able to maintain organized military units. These people argue that the Second Amendment was merely used to place the states" organized military forces beyond the federal government"s power to be able to disarm them. This would guarantee that the states would always have sufficient force at their command to abolish federal restraints on their rights and to resist by arms if necessary. The Second Amendment was written shortly after the colonist had gained their freedom from Britain, and the reason for their gaining independence is that they were tired of living under British rule and especially under the leadership of King George the III. These gun control advocates argue that the Second Amendment grew out of the colonists" fear of standing armies and their belief that having militias that were composed of ordinary citizens was the surest way of maintaining their freedom (3).
The opposite side of this debate consists of those who claim that the amendment guarantees some sort of individual right to arms. This view comes from the literal wording of the Second Amendment, which states, "the right of the people to keep and bear Arms, shall not be infringed." Along with this argument, the NRA and other groups in opposition of gun control argue that the first, fourth, ninth, and tenth amendments are all constructed to refer to the citizens as individuals and not as a collective state. These gun advocates feel that if one is to give a rational interpretation of the collective view to the constitution, then one would have to assume that the Framers referred to the individuals in the first, fourth, and ninth amendments; to the states in the second amendment, and then separated the states and the people in the tenth amendment, although they feel that this was inconsistent with the wording of the second amendment (5).
Proponents of strict gun control laws, including Handgun Control Inc., and Coalition to Stop Gun Violence argue that the Second Amendment guarantees a collective right rather than an individual right. When the occasion occurs that Americans find it necessary to band together to defend their rights, they are constitutionally guaranteed the right to own the firearms they need for that purpose. They advocate restrictions on some types of firearms by citing high numbers of gun-related deaths in the United States. These proponents argue that by making stricter gun laws this will in turn reduce the number to crimes that are committed with guns and would thus save lives. One of their supporting arguments is that each year in the United States, more than 35,000 people are killed by guns, which is a death rate that is much higher than any other nation. Attacks involving a gun are five times more likely to result in a death than in any similar attacks made with a knife. Also, in 1992 guns were the weapons used in approximately two-thirds of the murders of the United States (8). However, while gun control laws may decrease criminals access to guns, those same laws restrict law-abiding citizens.
Opponents of gun control laws, including organizations such as the National Rifle Association (NRA), object to the inconvenience these laws may cause to law-abiding gun buyers or owners and would not prevent the possession of guns by criminals. The NRA argues that about half of all United Stated families own at least one gun, and that the most frequent motives for owning a gun is to protect the home, hunting or target shooting, and for collecting. Those who oppose restrictions on gun ownership find support in the language of the Second Amendment and believe that it should be interpreted to guarantee citizens free access to fire arms. The NRA has strenuously lobbied for the passage of state laws allowing citizens to carry concealed weapons. In arguing that the Second Amendment gives citizens the right to bear arm, the NRA argues that the Fourteenth Amendment enforces the Second (3). The Fourteenth Amendment states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (From Amendment XIV section 1.1868)
In this argument the NRA stresses that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." They feel that this clearly makes it unlawful for the state to pose restrictions on firearms which is a privilege that is given to the citizens of the United States in the Second Amendment.
The Second Amendment has not yet been applied to the states, either directly or through incorporation of the Fourteenth Amendment. In the United States v. Cruickshank the United States Supreme Court in 1875 held that the Second Amendment restricts only Congress and the federal government; this was later affirmed by the same court in Presser v Illinois in 1886. Thus, the nature of the Second Amendment does not provide a right that is enforced by the Fourteenth Amendment. The courts view that the Fourteenth Amendment was designed to protect the states against the federal or national government, and not to create a personal right that either the state or federal authorities are bound to respect.
Guarantees of individual liberties under federalism have two components: the federal constitution and state constitutions. Dependence should be first placed in the state"s Bill of Rights, declaration of rights, because the United States Supreme Court has explicitly acknowledged each state"s "sovereign right to adopt in it own Constitution individual liberties more expansive than those conferred by the Federal Constitution."(7). The written content of most states bills of rights provides greater protection of the right to arms than does the Second Amendment. Currently the constitutions of forty-three states guarantee a right to arms. Of the seven states that do not have a clear constitutional guarantee to arms, three of those have a right to self-defense and one considers the right to life a built-in right. The right to self-defense can only be given force and effect if its guarantee includes the right to own arms for defensive purposes (2).
In addition, state courts consider the right to bear arms to be a civil right and consider such a right to protect liberty and property interest. This has allowed plaintiffs to the use of the Federal Civil Rights Act to sue state officials for violating a state created property or liberty interest to keep and bear arms.
The NRA"s opposition to the Brady Bill, which is a federal hand gun law that was first proposed in 1985, helped to delay its passage for seven years. Congress finally passed the bill in 1993 and it went into effect in 1994. This law provides a five-day waiting period to allow local law enforcement officials to make sure the purchaser is qualified to own a hang gun. The law also established a $200 federal firearm license fee and a $90 annual license renewal fee. The NRA also unsuccessfully opposed a 1994-crime bill because it included a ban on the importation of semiautomatic "assault" weapons (8). Currently the constitutionality of the Brady Bill is going to be decided by the Supreme Court this term. The issue being the constitutionality of federal involvement in basically states issues. In 1995 the U.S. Supreme Court declared another gun law, one that banned guns within 1,000 feet of schools, unconstitutional. The States, not Congress, have the authority to enact such criminal laws the Court held. The Brady Bill would appear in the same category.
The constitutional issue at stake is the question, do we, or do we not, have the right as individuals to possess firearms. The courts have never struck down a gun control law because many people feel that the Amendment guarantees citizens free access to fire arms. The courts have interpreted the Second Amendment as applying only to militia weapons. The federal government and all U.S. states do have some gun control laws. These laws are based on several strategies: forbidding people who are considered to be unreliable from obtaining any firearms; prohibiting anyone other than the police, the military, and persons with special needs from acquiring high-risk guns; and requiring waiting periods before purchasing a gun or a gun license. The most common strategies are based on preventing unreliable people from obtaining guns, such as people who have committed a felony. Federal and state laws also prohibit minors from purchasing guns. In 1993 the U.S Congress passed the Brady Bill, which was named after a former White House press secretary James Brady. Brady and his wife because proponents of gun control after Brady was shot and seriously wounded during the 1981 assassination attempt on President Ronald Reagan (4).
As the debate over slavery gradually changed from being constitutional to unconstitutional so will the debate over gun control. The political culture that once supported slavery changed gradually over time once people saw more and more how unequal it was. It is inevitable that overtime, the political culture on gun control will also change, it will only take a few instances to help in the defining moment on deciding the danger of having a world without restrictions on guns. These moments will be seen throughout our nation in the form of examples of gun-related accidents and kids committing "Columbine High School" like acts. Once these things are taken into consideration only then will our "right to bear arms" be clearly defined. Currently public opinion seems to be in favor of having tighter gun restrictions as was shown with the passing of the Brady Bill. Though with this majority being in favor of gun control these acts of legislation are rather slow in forming, due to the NRA and the vagueness of the Second Amendment. Another hindering factor is that in spite of the public majority being in favor of stricter gun control, the states are moving in a different direction. The reason behind this action is that the constitutionality of tighter gun control laws is becoming a question. Once the Supreme Court of the United States answers this question on the legality of infringing on the right to bear arms we will know what our exact right is.

 

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Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.

The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges.

In my dissent in the McDonald case, I pointed out that the court’s decision was unique in the extent to which the court had exacted a heavy toll “in terms of state sovereignty. . . . Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.”

“Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.”

In response to the massacre of grammar-school students at Sandy Hook Elementary School, some legislators have advocated stringent controls on the sale of assault weapons and more complete background checks on purchasers of firearms. It is important to note that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures.

First, the court did not overrule Miller. Instead, it “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” On the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the “common use” requirement.

Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.

A second virtue of the opinion in Heller is that Justice Antonin Scalia went out of his way to limit the court’s holding not only to a subset of weapons that might be used for self-defense but also to a subset of conduct that is protected. The specific holding of the case covers only the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.

Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.

There is an intriguing similarity between the court’s sovereign immunity jurisprudence, which began with a misinterpretation of the 11th Amendment, and its more recent misinterpretation of the Second Amendment. The procedural amendment limiting federal courts’ jurisdiction over private actions against states eventually blossomed into a substantive rule that treats the common-law doctrine of sovereign immunity as though it were part of the Constitution itself. Of course, in England common-law rules fashioned by judges may always be repealed or amended by Parliament. And when the United States became an independent nation, Congress and every state legislature had the power to accept, to reject or to modify common-law rules that prevailed prior to 1776, except, of course, any rule that might have been included in the Constitution.

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.

It is true, of course, that the public’s reaction to the massacre of schoolchildren, such as the Newtown killings, and the 2013 murder of government employees at the Navy Yard in Washington, may also introduce a strong emotional element into the debate. That aspect of the debate is, however, based entirely on facts rather than fiction. The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy.

Copyright © 2014 by John Paul Stevens. Reprinted with permission of Little, Brown and Company. All rights reserved.

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