THE 2ND AMENDMENT:THE GUN CONTROL CONTROVERSY

Chapter 7

Introduction

The 2nd Amendment protects the right of the people to keep and bear arms

Are people allowed to bear arms only if they are part of a militia or defending this country?

Can anyone posses a gun at any time? Can guns be used for national defense but not

for self-defense? These are some questions that are part of an

ongoing debate over gun control and the 2nd Amendment

Introduction

The 2nd Amendment starts out stating, “A well regulated militia…”

What is a militia? It is an armed group of citizens who defend

their community as emergencies arise

Historical Background

The Constitution was drafted in a time when fear of tyranny from a strong central government was uppermost in the new American’s minds.

In the colonial times, there was no permanent army There was a lack of funding Lack of personnel Organizational challenges

Historical Background

The colonists were on their own and needed to be prepared when Britain was going to challenge their new country.

The result was to form state militias. They were consisted of able body adult

male civilians and some professional soldiers.

They did not encompass the entire national population, but they did provide necessary protection and a sense of security.

Historical Background

Militia members were not allowed to keep arms, but were at times required to do so by law.

If the members were called to service, they were to bring their own arms and ammunition.

Some states mandated that all male citizens between certain ages be members of the militia.

The Debate

A central controversy over the 2nd Amendment is whether people have a right to bear arms as individuals, rather than only as part of a militia.

In 1794, the militia was made up of free male citizens, armed with muskets, bayonets and rifles.

Today, the militia is considered to consist of the National Guard units in every state. They are armed with government-supplied and

owned sophisticated weaponry.

The Debate

Modern –Day Militias in the United States 1992- Ruby Ridge 1993- the Branch Davidians 1996- “Freemen” Research shows an increasing amount of

militia groups

The Debate

Most people feel like those over 200 years ago.

The government has become too powerful and that individuals need to reclaim that power, often with the firearms they believe they are entitled to possess.

There are two opposing interpretation of the 2nd Amendment:1. Does the amendment guarantee individual’s

right to keep and bear arms?2. Does it guarantee the states freedom from

federal government infringement on this right?

The Debate

The phrasing (clauses) of the 2nd Amendment into two parts is what causes the biggest debate Operative clause

Identifies that action to be taken or prohibited Prefactory clause

Announces a purpose, but does not necessarily restrict the operative clause

The debate surrounding the 2nd Amendment centers around the prefactory clause and the intentions of the founding fathers

Individual Rights

Proponents of “the right to bear arms,” endorse an individual rights interpretation that would guarantee that right to all citizens.

These proponents see the amendment as primarily guaranteeing the right of the people, not the states. They also claim that the framers of the

constitution intended to preserve individual rights above state rights.

Individual Rights

This amendment is placed very close to our other individual rights, however, the states are not mentioned until the 10th Amendment.

James Madison stated that the amendments were to relate first to private rights.

Arms were such a pervasive part of colonial life that five state conventions recommended an amendment to guarantee the right to bear arms.

The courts throughout history have consistently rejected the individual rights view in favor of the state’s rights interpretation.

State’s Rights

Those favoring the state’s rights interpretation see the 2nd Amendment as protecting and modifying Article 1, Section 8 of the Constitution Commerce Clause – provides the legal foundation

for much of the federal government’s regulatory authority

Grants Congress the power “to provide for the calling forth of the Militia to execute the laws of the Union”

The purpose of the amendment is obviously to “assure the continuation and render possible the effectiveness of such forces.”

State’s Rights

State’s rights proponents claim that the 2nd Amendment was adopted with the primary purpose of preserving the state militia.

The courts have consistently interpreted the 2nd Amendment as allowing states to regulate private gun ownership.

The amendment preserves the state’s power to defend against foreign and domestic enemies, and it also reduces the need for a large standing army.

Early Case Law Regarding the 2nd Amendment: A Slow Start Federal regulation of firearms was

nonexistent for many years United States v. Cruikshank (1875)

The first notable case involving the 2nd Amendment

The U.S. Supreme Court responded to a claim of the right to bear arms for a lawful purpose, ruled: “This is not a right granted by the Constitution….The

2nd Amendment declares that is shall not be infringed, but this, as has been seen, means no more than it shall not be infringed by Congress”

Early Case Law Regarding the 2nd Amendment: A Slow Start The National Firearms Act of 1934 was established

because the federal government made an effort to regulate the possession of firearms, because the Court had little reason to interpret the amendment

This act was the first in federal regulation United States v. Miller (1939)

First, the district court granted Miller a demurrer Request that a suit be dismissed because the facts

do not sustain the claim against the defendant The US appealed the demurrer

The Supreme Court recognized a state right rather than an individual right to bear arms This case indicates that the amendment protects only arms

that bear some relation to preserving the militia

Early Case Law Regarding the 2nd Amendment: A Slow Start The courts continued to interpret the 2nd

Amendment this way Stevens v. United States (1971)

The courts ruled that there was no express right of an individual to keep and bear arms

A Shift in Interpretation: The Heller Decision Since the Miller case in 1939, there have been

more than 30 cases involving the 2nd Amendment In every case, except one, the courts have held

that the amendment refers to the right to keep and bear arms only in connection with a state militia

U.S. v. Emerson (1999) A district court went against all federal court

precedent Claimed the 2nd Amendment guaranteed the

individual’s right to keep and bear arms

A Shift in Interpretation: The Heller Decision District of Columbia v. Heller (2008)

The Supreme Court picked this case to evaluate a law in DC that banned handgun possession.

Law requires residents to keep lawfully owned firearms unloaded and disassembled.

The Supreme Court held that the 2nd Amendment protects an individual’s right to possess a firearm unconnected with service in the militia. First time ever Ruling has had little impact on federal gun control laws

Incorporation of the Second Amendment The 2nd Amendment remained unincorporated until

2010

McDonald v. Chicago (2010) The City of Chicago banned almost all handgun

possession by private individuals. Mr. McDonald argued that this left him vulnerable to

criminals. The Supreme Court held that the 14th Amendment

incorporates the 2nd Amendment right. The right to keep and bear arms was among the

fundamental rights necessary to our system or order liberty, the 2nd Amendment applies to the states.

Variation in State and Local Gun Laws States retain the right to impose

stricter regulations related to firearms than those required by the federal government.

How do states differ? Concealed Carry Laws Castle Laws Restrictions on Types of Firearms

Variation in State and Local Gun Laws Concealed Carry Laws

Some states have laws that say carrying a concealed weapon is a citizen’s basic right. They allow for people to easily obtain a permit.

• Not mentally ill

• Have not violated certain laws

Some states require the completion of training courses to get a CCW.

Some states have gun free zones around schools, hospitals, etc…

States and the 2nd Amendment United States v. Lopez (1995)

This case found the federal law banning guns near schools to be unconstitutional.

The Supreme Court struck down the Gun-Free School Zones Act.

Justice Department lawyers argued that the law was legitimate extension of Congress’ power to regulate interstate commerce.

Chief Justice Rehnquist said, “the law has nothing to do with commerce or any sort of enterprise.”

Restrictions on Types of Firearms Some weapons, such as fully automatic

machine guns or those altered to be more conductive to criminal activity, such as sawed-off shotguns, have always been illegal for most people to own.

What exactly constitutes a weapon or firearm has not been easily defined.

Some jurisdictions include anything that explodes or projects anything, including paintball guns and bow and arrows.

Federal Regulation and the 2nd Amendment Congress, using its broad authority to regulate

interstate commerce, has enacted some federal gun control legislation 1938, the Federal Firearms Act

Required dealers shipping firearms across state lines and importers to be licensed by the federal government

1967, the Omnibus Crime Control and Safe Street Act Made possession of firearms by convicted felons unlawful

1968, Gun Control Act Banned federal licensees from selling firearms to

prohibited persons Under indictment for or convicted of a felony A fugitive A drug user

Federal Regulation and the 2nd Amendment

Small v. United States (2005) The Supreme Court has ruled that the

federal law that bars gun ownership by convicted felons does not apply to those convicted in foreign countries

The Brady Act

November 30, 1993 President Clinton signed the Brady Handgun

Violence Prevention Act Contained the interim provision of a

mandatory five-day waiting period on all handgun purchases

This provision was phased out in 1998 with the permanent provision of an instant, computerized criminal background check on all handgun purchasers

Some states still impose a waiting period on firearms purchases

The Brady Act

Printz v. Unites States (1997) Supreme Court ruled that the federal

government was not empowered to require state or local law enforcement agencies to run background checks on prospective gun buyers

According to the Court, the background check provision violated the principle of separate state sovereignty

The Violent Crime Control and Law Enforcement Act of 1994 This Act banned the manufacture of 19 different

semiautomatic guns with multiple assault-weapon features

It prohibits transfer to or possession of handguns and ammunition by juveniles

It prohibits possession of firearms by people who have committed domestic abuse

It provides stiffer penalties for criminals who use firearms to commit federal crimes

This ban expired with a sunset clause A set ending time for legislation that is not renewed

to prevent old law from remaining on the books

The Law Enforcement Officers Safety Act Allows qualified off-duty and retired officers to

carry concealed weapons throughout the country, regardless of state or local firearms restrictions.

Goals To establish equality between local LEOs and their

federal counterparts who already carry nationwide. To create an unpaid homeland security force to

help protect the nation. To allow qualified current and retired LEOs the

means to defend themselves and their families.

Other Proposed Federal Legislation Recent proposed legislation

Denying Firearms and Explosives to Dangerous Terrorists Act Aims to prohibit those who are on the terror watch

list from purchasing firearms Gun Show Background Check Act

Would require vendors at gun shows to hold a federal firearms license and to conduct background checks

Gun Show Loophole Closing Act of 2009 Claims that it is too easy to buy guns from

unlicensed sellers

The Current Gun Control Debate In opposition to Gun Control:

The common argument about gun control is that claim that such laws will only put guns where they do not belong—in criminal’s hands.

The founding fathers wrote the 2nd Amendment to protect citizen’s right to defend themselves against oppression.

When people are disarmed, government tyranny and oppression thrive.

The Current Gun Control Debate In Support of Gun Control:

The Fraternal Order of Police to this issue as “crime control” not “gun control” They support regulations consistent with the

laws, but they do not support any new firearm legislation

The U.S. Constitution is proof that individuals have the right to own firearms However, court case rulings do not grant

individuals the right to own arms

The Current Gun Control Debate In Support of Gun Control:

History shows that the 2nd Amendment was written to protect colonists from England’s King George III’s military forces and contains nothing that could be constructed today as prohibiting gun control.

Guns are not the root cause of violence, but their usage increases the lethality of violence.

Finding Common Ground—Is a Compromise Possible? Gun control by the states is not

constitutionally prohibited. Legislation by the federal government is

not prohibited. It looks like the courts will continue to

defer to the discretion of the states on gun control matters.