Chapter 7

The Second Amendment: The Gun Controversy

Historical Background

• The Second Amendment was drafted in a time when fear of tyranny from a strong central government was very strong.

• The militia was considered to be the entire adult male populace. They were not simply allowed to keep arms, but were required to do so by law.

Historical Background

• Most states mandated that all males between certain ages be:– members of the militia– Be armed and taught military duty.

• James Madison emphasized to citizens they had “the advantage of being armed, which the Americans possess over the people of almost every other nation.”

Who is the militia?

• The militia is generally considered to consist of National Guard units in every state armed with government-supplied and owned sophisticated modern weaponry.

The controversy

• The central controversy over the Second Amendment is whether people have a right to bear arms as individuals rather than only as part of a militia.

Individual Rights v. States’ Rights

• Two opposing interpretations of the Second Amendment involve whether– the amendment guarantees

the right of individuals to keep and bear arms or

– whether it guarantees the states freedom from federal government infringement on this right.

Individual Rights Advocates

• Individual rights proponents see the amendment as primarily guaranteeing the right of the people, not the states.

• This right is a product of the more central individual right.

• The collective right that preserves the states’ militia is guaranteed only if the individual right is first maintained.

Individual Rights Advocates

• Madison’s notes state the amendments were to relate first to private rights.

• Support for this view may be found in the Los Angeles riots that followed the not-guilty jury verdict in the Rodney King case.

• A lesson of the Los Angeles uprising for many people was that the police cannot protect everyone during a citywide emergency.

States’ Rights

• Those favoring a states’ rights interpretation see the Second Amendment as protecting and modifying Article 1, Section 8 of the Constitution, which grants Congress the power “to provide for the calling forth of the militia to execute the laws of the Union.”

• The Second Amendment contains a sort of mini-preamble, clearly proclaiming as its purpose the fostering of a “well-regulated Militia,” a purpose extraneous to one allowing individual possession of weapons for use against fellow citizens.

Non-incorporation of the Second Amendment

• This is one of the few amendments contained within the Bill of Rights that has not been incorporated under the Fourteenth Amendment to apply to both federal and state government because to date it has not been considered essential to “a scheme of ordered liberty” by the Supreme Court.

• Presser v. Illinois (1886), the Court refused to incorporate the Second Amendment into the Fourteenth Amendment. The Second Amendment does not apply to state government.

Case Law and the Second Amendment

• United States v. Cruikshank (1875), the U.S. Supreme Court, responding to a claim that there was a right to bear arms for a lawful purpose ruled: “This is not a right granted by the Constitution….The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than it shall not be infringed by Congress.”

Case Law and the Second Amendment

• The National Firearms Act of 1934 was the first such effort at federal regulation. Section 11 of the act made it illegal for a person “who has not in his possession a stamp-affixed order to ship, carry, or deliver any firearm in interstate commerce.”

Case Law and the Second Amendment

• United States v. Miller (1939), the district court granted the defense a demurrer, which is a request that a suit be dismissed because facts do not sustain the claim.

• The Supreme Court interpreted the Second Amendment as providing for maintaining a militia: “With the 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 view in mind.

Case Law and the Second Amendment

• This amendment protects only arms that bear some relation to the preservation of the militia.

• Having a barrel of less than 18 inches in length at this time has some reasonable relationship to the preservation of a well-regulated militia.

• A law prohibiting transportation of unregistered shotguns in interstate commerce is not unconstitutional.

Case Law and the Second Amendment

• Cases v. United States (1942), the right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing on that right.

Case Law and the Second Amendment

• Stevens v. United States (1971), the Second Amendment applies only to the right of the state to maintain a militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

Case Law and the Second Amendment

• The aberrant decision came in United States v. Emerson (1999), when U.S. District Judge Sam R. Cummings went against all federal court precedent and restored a domestic abuser’s firearms citing the Second Amendment as guaranteeing the individual’s right to keep and bear arms.

States and the Second Amendment

• Most federal courts have ruled that a complete ban on certain types of guns is acceptable.

• The states’ power to regulate firearms appears to be nearly absolute.

States and the Second Amendment

• Quilici v. Village of Morton Grove (1982), it seems clear that the right to bear arms is inextricably connected to the preservation of a militia.

• United States v. Lopez (1995), found a federal law banning guns near schools to be unconstitutional. This Supreme Court 5-4 decision struck down the Gun-Free School Zones Act. Chief Justice Rehnquist found that the law “has nothing to do with commerce or any sort of enterprise.”

Concealed Carry Laws

• The law regulating carrying a concealed weapon vary from state to state.– Cannot have a criminal record– No mental illness– Some require completion of classroom and

range training courses– Other states limit permits to carry a concealed

weapon– A few states issue no permits

Concealed Carry Laws

• A public policy research group found that the state’s concealed carry law made Texas “a safer place by giving law-abiding residents a means of protecting themselves.”

• In Washington, DC, came to a contrary conclusion, people who obtain the permits to carry concealed handguns, instead of using guns to prevent crimes, are often committing crimes, with more than two arrests of permit holders per day on average.

Concealed Carry Laws

• Courts have been reluctant to relax search-and-seizure restrictions on law enforcement officers in cases involving anonymous tips of concealed-carry violations.

Federal Regulation and the Second Amendment

• Congress, using its broad authority to regulate interstate commerce, has enacted federal gun control legislation.

• In 1938, the Federal Firearms Act was passed, requiring dealers shipping firearms across state lines and importers to be licensed by the federal government.

Federal Regulation and the Second Amendment

• In 1967, Congress passed the Omnibus Crime Control and Safe Streets Act. A portion of that act made it unlawful for convicted felons to possess a firearm.

• Stevens, a felon, was convicted under the act and appealed on the grounds that his right to bear arms had been infringed and that Congress did not have the constitutional authority to regulate possession of firearms.

Stevens v. U.S.

• On the question of constitutional authority, the Sixth Circuit Court of Appeals held that the power to regulate interstate commerce gave congress the power to regulate firearms: “There can be no serious doubt that the possession of firearms by convicted felons is a threat to interstate commerce.”

Federal Regulation and the Second Amendment

• The Gun Control Act was passed prohibiting federal licensees from selling firearms to prohibited people, anyone they knew or had reasonable cause to believe was or had been:– Under indictment– A fugitive– A drug user– Adjudicated a mental defective or committed to

a mental institution– Who fit into other limited categories

The National Firearms act

• Do I have a right to keep an automatic weapon such as a submachine gun?

United States v. Warin (1976),

• Warin was convicted of possessing an unregistered submachine gun. He appealed.

• First, he argued that because he was subject to enrollment in the state militia, the amendment granted him the right to bear arms.

• Second, the National Firearms Act taxed the right to keep and bear arms.

• Finally, he argued that as a member of the sedentary militia the right to bear and keep arms was a fundamental right under the Ninth Amendment.

United States v. Warin

• The court held – Being subject to enrollment in the state militia

is not a valid argument – the military provides arms.

– The tax imposed by the Act relates to commerce not the the right to keep and bear arms.

– that the Ninth Amendment confers no additional fundamental right to an “unregistered submachine gun.”

The Brady Law

• Passed in 1993, contained the interim provision of a mandatory five-day waiting period on all handgun purchases, to be phased out and replaced in 1998 with the permanent provision of an instant computerized criminal background check of all handgun purchasers. Some states still impose a waiting period on firearms purchases.

The Brady Law

• In 1997 the Supreme Court ruled 5-4 in Printz v. United States that the federal government was not empowered to require state or local law enforcement agencies to run background checks on prospective gun buyers.

• As of November 1, 1998, the Brady Law was modified so applicants can receive immediate clearance to purchase a gun.

The Brady Law

• The Brady Law does not prohibit states from enacting their own, longer waiting periods.

• Journal of the American Medical Association 2000 analyzed national homicide and suicide data between 1985 and 1997. It concluded: “Our analyses provide no evidence that implementation of the Brady Act was associated with a reduction in homicide rates.” Other researchers assert the opposite.

The Violent Crime Control and Law Enforcement Act of 1994

• Places a ban on the manufacturing of 19 different semiautomatic guns.

• Prohibits transferring to or possession of handguns and ammunition by juveniles, prohibits possessing firearms by people who have committed domestic abuse and provides stiffer penalties for criminals who use firearms in committing federal crimes.

In Opposition to Gun Control

• A common argument among gun control opponents is the claim that such laws will only put guns where they do not belong – in the hands of criminals.

In Opposition to Gun Control

• Based on the assumption that the greatest reductions in fatal violence would be within states that were required to institute waiting periods and background checks, implementation of the Brady Act appears to have been associated with reductions in the firearm suicide rate for people aged 55 years or older but not with reductions in homicide rates or overall suicide rates.

In Opposition to Gun Control

• Gun control opponents assert the decrease in gun violence may be attributable to many factors other than legislation, including a stronger economy and lower unemployment rates; increased numbers of police in the community; implementation of new, more aggressive and more effective police tactics; and the crackdown on illegal drug trafficking.

Finding Common Ground-Is a Compromise Possible?

• Gun control by the states is not constitutionally prohibited. Neither is legislation by the federal government.

• United States v. Miller (1939) remains the only Supreme Court case that specifically addresses that amendment’s scope.

• The Supreme Court has repeatedly denied certiorari (refused to review) in cases in which the individual right to bear arms is at issue.