Ap Government And Politics Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Etheridge, L

AP Government and politics

28 February 2013

Gun Control

From the moment the Constitution was introduced in 1789 and then ratified in 1791 there have been disagreements over several different clauses of the document, but none as controversial as the Second Amendment of the Bill of Rights. The second amendment states "A well-regulated Militia, being necessary to the security of a Free State, the right of people to keep and bear Arms, shall not be infringed."(U.S. Const.). Since the bill of rights was added to the Constitution, the different sides of the political aisle have been arguing over what that statement means. This question still haunts our nation even today. With the events that have occurred recently in our nation this issue has come to the forefront once again.

There are two main interpretations of the amendment, the individual right and the collective right. Two very different ideas. Each of these ideas has a completely different interpretations of the amendment. One stating that the clause gives each individual the right to carry and own firearms. While the other states that the amendment gives not the right to bear arms but the right for each state to for its own militia.

The one of the popular thoughts in the present day is the individual right. This belief is that the amendment gives each individual the right to keep and bear arms without having to be a member of a militia. That it

"Creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional."(Cornell University Law School)

That because the Constitution states in the bill of rights that we have a right to bear arms to form a militia then we automatically receive the right to own firearms. However this isn’t the only view held by the public.

Another interpretation is the Collective right. This is the belief that the second amendment can be interpreted to mean that the public doesn’t actually retain the individual right to own firearms, but that it just gives the states the power to form a militia. As stated here

"Scholars point to the prefatory language "a well-regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right."(Cornell University Law School)

So the various legislative bodies would actually have the ability to regulate gun control laws without infringing on our constitutional rights. The Supreme Court has actually ruled on this issue before.

One of the earliest cases heard by the Supreme Court involving an interpretation of the second amendment was United States v. Cruikshank. This case concerned members of the Klu Klux Klan massacring a large group of one hundred to two hundred freed former slaves in what was later called the Colfax Massacre. After this several members of the white mob were indicted under the Enforcement Act of 1870, which made it a felony for two or more people to conspire to deprive anyone of their constitutional rights. However after the Supreme Court ruled they released two of the charged men.

Their final ruling on the matter was that the Bill of Rights did not pertain to the state governments but only limited the power of the federal government. The court found that the 1st amendment "was not intended to limit the powers of the state governments in respect to their own citizens."(U.S. v. Cruikshank). Also that the second amendment is only meant to limit the power of the federal government not state governments. This case remained relevant until much of its ruling was overturned by the enactment of the Civil Rights Act. This case is has been cited for a little over a century by supporters of state and local gun control laws.

Another court case that supports the position that the second amendment only protects the right to a militia is Presser v. Illinois. In 1879 Herman Presser belonged to a German American militia group formed to combat the small private armies hired by companies in Chicago to help control their workers. He was indicted after his illegal militia paraded and drilled armed in the city of Chicago. This was illegal in the state of Illinois unless allowed by the governor, you belonged to the official state militia, or were a member of the United States military. After being indicted Presser claimed that the law violated his second amendment rights.

This case went before the Supreme Court 1886 after claimed his second amendment rights were being infringed upon. The Supreme Court reaffirmed the original ruling stating

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. (Presser v. Illinois).

This reaffirmed the courts earlier decision in U.S. v. Cruikshank, by stating that the Court did decide that that the state governments could not completely disarm their citizens, but must leave some armed militia force for the general government to call on. They also denied Presser’s argument that there is a right to assemble, drill, or march in a militia independent of authorization by state or federal law. Stating that "Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law."(Presser v. Illinois). The traditional reading of this case was always that it supported the states right to regulation however in modern times this has been argued that it suggest that the states also have limited power concerning gun control.

The next case the Supreme Court heard concerning the second amendment was United States v. Miller which concerned two defendants, Miller and Layton, claiming that the section of the National Firearms Act that they were arrested under was unconstitutional and that it infringed on their second amendment rights. The district judge agreed with their claim stating that it violated the second amendment and dismissed their indictment. The decision was then appealed by the Supreme Court on March 30, 1939. The decision of the Supreme Court

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." (United States v. Miller).

Saying that a double barrel shot gun was not protected by the second amendment because the second amendment protected militias and not firearms. Stating that a shotgun under eighteen inches was not essential to a well-regulated militia.

Both sides of the argument point to this case as a victory for their respective sides. The advocators of the individual gun rights state that this case proves that owning a firearm is protected by second amendment to allow for the efficiency or preservation of a militia unit. They also point out that the court must have not been informed that shotguns were viable in war and that the United States purchased up forty thousand pump action shotguns during World War I. While those advocating gun control state that it means that firearms can be regulated by the state governments.

The Supreme Court maintained this ruling until 2008, until they ruled on District of Columbia v. Heller. This was a landmark decision by the Supreme Court because for the first time the court held that the Second amendment protects an individual’s right to possess a firearm for reasons such as personal defense and defense of one’s property. This happened when they affirmed the decision of the Court of Appeals in the D.C. Circuit when they struck down some provisions of the Firearms Control Regulations Act of 1975. They founded that the District of Columbia’s regulation’s act was the unconstitutional banning of firearms such as handguns which were banned from 1975 unless grandfathered in. Also that stated that rifles and shotguns must remain unloaded and disassembled or with a trigger lock.

This case was a very important decision in the argument over the interpretation of the second amendment. Many different groups and individuals filed Amicus Curiae briefs supporting one side or the other. There were about forty seven briefs that supported affirming or supporting the original decision and about twenty filed in support of remanding the decision. Many members of congress signed a brief to affirm. Also most of the states signed onto the side to affirm but were stating that they wanted to maintain their right to make their own gun laws. Many different religious and anti-violence organizations filed with briefs to remand the decision along with several state attorney generals.

The Supreme Court held that:

"(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28- 30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54." (District of Columbia v. Heller).

The foundation that holds this case in place is the ruling on the second amendment giving the individual the right to carry a firearm in the interest of self-defense. There was a lot of historical information brought forward to support this claim. Historically the constitution says that a human being has the right to self-defense. Stated that by not allowing Heller to defend himself with a handgun, which was described as protected as a weapon used by militia, they were declining Heller of his constitutional rights by not allowing him to register a handgun.

The most recent Supreme Court Case involving an interpretation of the second amendment was McDonald v. Chicago. The decision on this case by the Supreme Court invoked the fourteenth amendment, the Due Process Clause, stated that right of the individual to keep and bear arms protected by the second amendment also applies to the states meaning that they could not be infringed by the local governments. This helped clear a lot of confusion after the ruling on District of Columbia v. Heller and redraw the lines of what powers the states now had concerning gun control. Also reaffirmed some gun restrictions mentioned in the previous case are considered permissible. Such as not allowing the mentally ill or convicted felons from possessing firearms and from carrying them in sensitive areas like government buildings and schools.

The second amendment has been controversial throughout American history. Some constitutional scholars have called for a very strict interpretation of the second amendment while some call for a broader interpretation. Both advocates and opponents have tried to use the wording of the second amendment to support their own opinions. However the wording is very precise and cannot be twisted to fit popular opinions or passing fads. From the moment the Constitution was ratified in 1791 there have been disagreements over several different clauses of the document, but none as controversial as the Second Amendment of the Bill of Rights.

WORKS CITED PAGE

United States v. Cruikshank. 92 United States Reports. Supreme Court. 27 Mar. 1876. N.p., n.d. Web. 28 Feb. 2013.

Presser v. Illinois. Supreme Court. 4 Jan. 1886. Justia.com US Supreme Court Center. N.p., n.d. Web. 28 Feb. 2013.

United States v. Miller. Supreme Court. 15 May 1939. Justia.com US Supreme Court Center. N.p., n.d. Web. 28 Feb. 2013.

District of Columbia v. Heller. Supreme Court. 26 June 2008. Justia.com US Supreme Court Center. N.p., n.d. Web. 1 Mar. 2013.

McDonald v. Chicago. Supreme Court. 28 June 2010. Justia.com US Supreme Court Center. N.p., n.d. Web. 1 Mar. 2013.

"Second Amendment." Legal Information Institute. N.p., n.d. Web. 01 Mar. 2013.

Cornell, Saul. "The Second Amendment Under Fire: The Uses of History and the Politics of Gun Control." The Second Amendment Under Fire: The Uses of History and the Politics of Gun Control. N.p., n.d. Web. 01 Mar. 2013.

Barnes, Robert, and Dan Eggan. "Washington Post." Washington Post. The Washington Post, 29 June 2010. Web. 01 Mar. 2013.

Cornell, Saul. A Well-regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Oxford: Oxford UP, 2008. Print.

"Gun Control Facts." By James D. Agresti and Reid K. Smith. Just Facts, September 13, 2010. Revised 2/11/13. http://justfacts.com/guncontrol.asp

GOLDBERG, JEFFREY. "THE CASE FOR MORE Guns (AND MORE GUN CONTROL)." Atlantic Monthly (10727825) 310.5 (2012): 68-78. Literary Reference Center. Web. 1 Mar. 2013.