GUN CONTROL and THE SECOND AMENDMENT
One of the most contentious issues under debate today is whether the Federal government should provide a stronger role in regulating handguns and related firearms. The most well known group that is against more federal regulations is the National Rifle Association. The most well known group in favor of more federal regulations is Handgun Control Incorporated, (HCI) along with its affiliate organization, the Center to Prevent Handgun Violence. The NRA states that the Second Amendment guarantees individuals the right to own and carry guns. They are concerned that federal regulations will continue to increase until owning a handgun will be difficult to achieve, infringing on their Constitutional rights. They also argue if law-abiding citizens have guns, they are safer from criminals, bringing crime rates down. HCI, on the other hand, argues that the Second Amendment does not guarantee individuals the right to own and carry guns. Further, they argue that when more people have guns, deaths and injuries from guns increase. It is up to the general public to determine which of these positions is accurate. We may not agree with the conclusions of either group, but we need to know whether the Constitution guarantees the right for individuals to own and carry guns.
THE SECOND AMENDMENT
“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.”
These twenty-seven (27) words are the basis for the controversy over the American people's right to keep and bear arms. Do we, as American citizens, have the right to keep and bear arms? Or, does the Second Amendment state that only the military and government agencies have that right? Should the Federal government play a stronger role in regulating the ownership of handguns and related firearms? I will look at both sides of the argument and conclude with my personal opinion of the matter.
ANTI-GUN CONTROL ADVOCATES
There are many groups and organizations that want to protect our Second Amendment rights, the best known being the NRA. All of these groups have similar beliefs in the original intent and purpose of the Second Amendment. They believe the original purpose was to preserve and guarantee, not grant the pre-existing rights of individuals, to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia let alone a well-regulated one is not required to exercise the right to keep and bear arms. The Founders were expressing a preference for a militia over a standing army. Even if today's well regulated militia were the National Guard, the Second Amendment still protects an individual's right to keep and bear arms. There is no evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, that the Second Amendment applied only to members of a well regulated militia or that the sole purpose of this amendment was to preserve the right of states to keep their militias.
AN INDIVIDUAL RIGHT
In his edition of Blackstone's Commentaries on the Law of England (1803), St. George Tucker, a lawyer, Revolutionary War militia officer, legal scholar and later a U.S. District Court Judge wrote:
"The right of the people to keep and bear arms shall not be infringed, and this without any qualifications as to their condition or degree, as is the case in the British Government."
In the appendix to the Commentaries, Tucker elaborates further:
"This may be considered as the true palladium of liberty…. The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
Tucker's remarks are evidence that the militia clause was not the sole reason for preserving the right of the people to keep and bear arms. Tucker specifically mentions self-defense. This indicates two (2) things:
1) The right to keep and bear arms was not restricted to military purposes;
2) "The people" means individuals, not a collective entity, and not a state.
In the Federalists Papers, No. 29, Alexander Hamilton clearly states membership in a well-regulated militia is not required for the right to keep arms:
"What plan for the regulation of the militia may be pursued by the
national government is impossible to be foreseen…The project of disciplining
all the militia of the United States is as futile as it would be injurious if
it were capable of being carried into execution…Little more can reasonably be
aimed at with the respect to the people at large than to have them properly
armed and equipped; and in order to see that this be not neglected, it will be
necessary to assemble them once or twice in the course of a year."
The NRA and other organizations stand by these quotes saying that the Second Amendment guarantees the right of a private individual to keep and bear arms.
GUN CONTROL
The NRA and other organizations are against the regulation and registration of firearms. They believe that any new laws that regulate firearms or that require registration could infringe on our Constitutional rights. They believe that the government should concentrate on enforcing laws that are already on the books and not worry about creating new laws.
The basic reason NRA is against regulation of gun ownership is the belief that each piece of federal regulation will lead to more until finally, gun ownership will be very restricted. This can be seen in countries such as Great Britain, Japan and Australia, where gun ownership is very restricted and can lead to confiscation of the weapons.
PRO GUN CONTROL ADVOCATES
On the opposite side of the debate is HCI. Handgun Control and its affiliate, the Center to Prevent Handgun Violence, HCI explains that at the time the Second Amendment was considered for adoption by Congress, some states had laws protecting individual rights to have guns. According to HCI, Congress debated whether the Second Amendment should include the right of individuals to carry guns for personal reasons and decided to limit the Second Amendment to include only the right to bear arms for military purposes or national defense. HCI concludes that individuals do not have the right to keep and bear arms for personal uses under the Second Amendment since the Second Amendment's purpose is solely for national defense.
HCI argues that when the civilian population has more access to guns, more teens and children die from gunshot wounds. For example, during a year when over five thousand (5,000) teens and children died from gunshot wounds in the USA, in Great Britain, where gun ownership is very restricted, nineteen (19) teens and children died from gunshot wounds. HCI also argues for laws that promote gun safety, such as requiring childproof locks on gun triggers. The have praised Smith & Wesson for starting to make guns with safety features. HCI asserts that the public good is served by enacting laws that carefully protect children from access to guns.
HCI and THE SECOND AMENDMENT
HCI, of course, has different beliefs about the original intent and purpose of the Second Amendment than the NRA. They saw when the United States Constitution was adopted; each of the states had its own "militia"--a military force comprised of ordinary citizens serving as part-time soldiers. The militia was "well-regulated" in the sense that its members were subject to various requirements such as training, supplying their own firearms and engaging in military exercises away from home. It was a form of compulsory military service intended to protect the nation from outside forces and internal rebellions. The "militia" was not simply another word for the populace at large. Indeed, membership in the 18th century militia was general limited to white males between the ages of 18 and 45 -- hardly encompassing the entire population of the nation.
In the 20th century, the Second Amendment has become an anachronism, largely because of drastic changes in the militia it was designed to protect. We no longer have the citizen militia like that of the 18th century. Today's equivalent of a "well-regulated" militia, the National Guard, has more limited membership than its early counterpart and depends on government supplied, not privately owned, firearms. Gun control laws have no effect on the arming of today's militia since those laws invariably do not apply to arms used in the context of military service and law enforcement. Therefore, they raise no serious Second Amendment issues.
THE SECOND AMENDMENT IN THE COURTS
Both sides agree that the final authority for interpreting the meaning of the Second Amendment is the United States Supreme Court. There have been several cases which the Second Amendment has been mentioned. The cases prior to the 20th century upheld the right to keep and bear arms. However, during the 20th century, the Supreme Court has given a different view of the Second Amendment.
Dred Scott v. Sanford was the first case in which the Supreme Court mentioned the right to keep and bear arms. The issue before this pre-Civil War and pre-emancipation Court was whether blacks were "citizens." The Court stated that if blacks were citizens, they would have the same constitutional protections afforded to white citizens, which included the right to keep and bear arms.
A key case is, according to both sides of the argument, U.S. v. Miller, 307 U.S. 174 (1939). The Supreme Court examined the original records of Congress to determine why the Second Amendment was written into the Constitution. The clarified the intent of the Second Amendment with this statement:
"The Constitution, as originally adopted, granted to the Congress power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining, the militia, and for government such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the Officers, and the authority of training the militia according to the discipline prescribed by Congress. With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
From this statement, the purpose of the Second Amendment was to support the national. Defense. Therefore, the only purpose for which owning and carrying a gun is protected under the Second Amendment is as part of "a well-regulated militia," acting on behalf of the national government.
To summarize, HCI concludes that individuals do not have the right to keep and bear arms for personal uses under the Second Amendment since its purpose is solely for national defense. On the other hand, the NRA concludes that the ruling supports the right of individuals to keep and bear arms as long as they do so for a military purpose.
PERSONAL VIEWS
I believe that the citizens do have a constitutional right to keep and bear arms. But I do not agree with some of the beliefs of the NRA nor do I agree with everything that HCI is trying to accomplish.
I think that gun manufacturers should make guns safer, such as including trigger locks with the purchase of a new firearm. Other means of making firearms safer would be to include smart gun technology. This is where the gun can recognize the owner's grip and will fire only if that person is handling the weapon. By making firearms safer, we could reduce the amount of accidental shootings and deaths among children. I also believe that if states would enforce the gun laws that we already have that death from gunfire and crime would be reduced. Such as example is "Project Exile," a Federal program enacted in Richmond, Virginia aimed at taking armed criminals off the street. All felons with guns, guns/drug cases, and gun/domestic violence cases in Richmond are federally prosecuted, without regard to numbers or quantities. The project has quickly, efficiently and successfully prosecuted a large number of gun crimes with significant impact on criminal behavior. Another such example in Boston, Massachusetts by enforcing the existing laws (such as a ten year penalty for felons found to be in possession of a firearm), and employing aggressive intervention strategies, youth gun homicide was reduced to zero in 1996 and 1997. An astonishing sixty- percent (60%) in six (6) years reduced Boston's total homicide rate.
I think by making safer guns and enforcing the laws that we already have we can decrease gun crimes and deaths, yet still protect our Second Amendment rights.