The Right to Bear Arms

Second Amendment to the U.S. Constitution  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.

Introduction  The 2 nd 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.

The Debate  A central controversy over the 2 nd 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.

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 10 th 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.

Stevens v. United States (1971)  The courts ruled that there was no express right of an individual to keep and bear arms  Since the Miller case in 1939, there have been more than 30 lower federal and state cases involving the 2 nd 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) – U.S. District Court case  A district court went against all federal court precedent  Claimed the 2 nd Amendment guaranteed the individual’s right to keep and bear arms

A Shift in Interpretation: The Heller Decision  District of Columbia v. Heller (2008) – SUPREME COURT CASE  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 2 nd 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; Federal courts have not invalidated gun control laws

Incorporation of the Second Amendment  The 2 nd 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 14 th Amendment incorporates the 2 nd Amendment right.  The right to keep and bear arms was among the fundamental rights necessary to our system or order liberty, the 2 nd Amendment applies to the states.

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.

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 in 2004  A set ending time for legislation that is not renewed to prevent old law from remaining on the books

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 2 nd 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 refer 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 2 nd 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.