1 Cottrol, Robert, ed. Gun Control and the Constitution: Sources and Explorations on the
SecondAmendment. New York: Garland Publishing Inc., 1994
2 Dowlut, Robert. The Right to Keep and Bear Arms in State Bills of Rights and Judicial
Interpretation. SAF 1993
3 Freedman, Warren. The Privilege to Keep and Bear Arms. Connecticut: Quorum Books,
4 Hickok, Eugene Jr., ed. The Bill of Rights: Original Meaning and Current Understanding. Virginia: University Press of Virginia, 1991
5 Kruschke, Earl PHD. Gun Control: A Reference Handbook. California: ABC-CLIO Inc.,
6 Image on the cover page taken from TIME. Photographer unknown.
7 Prune Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)
8 Zimring, Franklin E., Gun Control. Encyclopedia Encarta: 1993-1997 Microsoft Corporation.
Throughout the years there has been an ongoing debate over the Second Amendment and how it should be interpreted. The issue that is being debated is whether our government has the right to regulate guns. The answer of who has which rights lies within how one interprets the Second Amendment. With this being the case, one must also think about what circumstances the Framers were under when this Amendment was written. There are two major sides to this debate, one being the collective side, which feels that the right was given for collective purposes only. This side is in favor of having stricter gun control laws, as they feel that by having stricter laws the number of crimes that are being committed with guns will be reduced and thus save lives. However while gun control laws may decrease criminals’ access to guns, the same laws restricts gun owning citizens who abide by the law; these citizens make up a great majority of the opposing side of this argument. These people argue that the law was made with the individual citizens in mind. This group believes that the Amendment should be interpreted to guarantee citizens free access to firearms. One major group that is in strong opposition of stricter gun control laws is the National Rifle Association (NRA). The NRA argues that having stricter gun control laws will only hinder law-abiding citizens. The final outcome on this debate will mainly depend on how this Amendment is going to be interpreted.
The Second Amendment of the Bill of Rights states:
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. (Amendment II 1791)
This debate has produced two familiar interpretations of the Second Amendment. Advocates of stricter gun control laws have tended to stress that the amendment’s militia clause guarantees nothing to the individual and that it only protects the states’ rights to be able to maintain organized military units. These people argue that the Second Amendment was merely used to place the states’ organized military forces beyond the federal government’s power to be able to disarm them. This would guarantee that the states would always have sufficient force at their command to abolish federal restraints on their rights and to resist by arms if necessary. The Second Amendment was written shortly after the colonist had gained their freedom from Britain, and the reason for their gaining independence is that they were tired of living under British rule and especially under the leadership of King George the III. These gun control advocates argue that the Second Amendment grew out of the colonists’ fear of standing armies and their belief that having militias that were composed of ordinary citizens was the surest way of maintaining their freedom (3).
The opposite side of this debate consists of those who claim that the amendment guarantees some sort of individual right to arms. This view comes from the literal wording of the Second Amendment, which states, “the right of the people to keep and bear Arms, shall not be infringed.” Along with this argument, the NRA and other groups in opposition of gun control argue that the first, fourth, ninth, and tenth amendments are all constructed to refer to the citizens as individuals and not as a collective state. These gun advocates feel that if one is to give a rational interpretation of the collective view to the constitution, then one would have to assume that the Framers referred to the individuals in the first, fourth, and ninth amendments; to the states in the second amendment, and then separated the states and the people in the tenth amendment, although they feel that this was inconsistent with the wording of the second amendment (5).
Proponents of strict gun control laws, including Handgun Control Inc., and Coalition to Stop Gun Violence argue that the Second Amendment guarantees a collective right rather than an individual right. When the occasion occurs that Americans find it necessary to band together to defend their rights, they are constitutionally guaranteed the right to own the firearms they need for that purpose. They advocate restrictions on some types of firearms by citing high numbers of gun-related deaths in the United States. These proponents argue that by making stricter gun laws this will in turn reduce the number to crimes that are committed with guns and would thus save lives. One of their supporting arguments is that each year in the United States, more than 35,000 people are killed by guns, which is a death rate that is much higher than any other nation. Attacks involving a gun are five times more likely to result in a death than in any similar attacks made with a knife. Also, in 1992 guns were the weapons used in approximately two-thirds of the murders of the United States (8). However, while gun control laws may decrease criminals access to guns, those same laws restrict law-abiding citizens.
Opponents of gun control laws, including organizations such as the National Rifle Association (NRA), object to the inconvenience these laws may cause to law-abiding gun buyers or owners and would not prevent the possession of guns by criminals. The NRA argues that about half of all United Stated families own at least one gun, and that the most frequent motives for owning a gun is to protect the home, hunting or target shooting, and for collecting. Those who oppose restrictions on gun ownership find support in the language of the Second Amendment and believe that it should be interpreted to guarantee citizens free access to fire arms. The NRA has strenuously lobbied for the passage of state laws allowing citizens to carry concealed weapons. In arguing that the Second Amendment gives citizens the right to bear arm, the NRA argues that the Fourteenth Amendment enforces the Second (3). The Fourteenth Amendment states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (From Amendment XIV section 1.1868)
In this argument the NRA stresses that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” They feel that this clearly makes it unlawful for the state to pose restrictions on firearms which is a privilege that is given to the citizens of the United States in the Second Amendment.
The Second Amendment has not yet been applied to the states, either directly or through incorporation of the Fourteenth Amendment. In the United States v. Cruickshank the United States Supreme Court in 1875 held that the Second Amendment restricts only Congress and the federal government; this was later affirmed by the same court in Presser v Illinois in 1886. Thus, the nature of the Second Amendment does not provide a right that is enforced by the Fourteenth Amendment. The courts view that the Fourteenth Amendment was designed to protect the states against the federal or national government, and not to create a personal right that either the state or federal authorities are bound to respect.
Guarantees of individual liberties under federalism have two components: the federal constitution and state constitutions. Dependence should be first placed in the state’s Bill of Rights, declaration of rights, because the United States Supreme Court has explicitly acknowledged each state’s “sovereign right to adopt in it own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”(7). The written content of most states bills of rights provides greater protection of the right to arms than does the Second Amendment. Currently the constitutions of forty-three states guarantee a right to arms. Of the seven states that do not have a clear constitutional guarantee to arms, three of those have a right to self-defense and one considers the right to life a built-in right. The right to self-defense can only be given force and effect if its guarantee includes the right to own arms for defensive purposes (2).
In addition, state courts consider the right to bear arms to be a civil right and consider such a right to protect liberty and property interest. This has allowed plaintiffs to the use of the Federal Civil Rights Act to sue state officials for violating a state created property or liberty interest to keep and bear arms.
The NRA’s opposition to the Brady Bill, which is a federal hand gun law that was first proposed in 1985, helped to delay its passage for seven years. Congress finally passed the bill in 1993 and it went into effect in 1994. This law provides a five-day waiting period to allow local law enforcement officials to make sure the purchaser is qualified to own a hang gun. The law also established a $200 federal firearm license fee and a $90 annual license renewal fee. The NRA also unsuccessfully opposed a 1994-crime bill because it included a ban on the importation of semiautomatic “assault” weapons (8). Currently the constitutionality of the Brady Bill is going to be decided by the Supreme Court this term. The issue being the constitutionality of federal involvement in basically states issues. In 1995 the U.S. Supreme Court declared another gun law, one that banned guns within 1,000 feet of schools, unconstitutional. The States, not Congress, have the authority to enact such criminal laws the Court held. The Brady Bill would appear in the same category.
The constitutional issue at stake is the question, do we, or do we not, have the right as individuals to possess firearms. The courts have never struck down a gun control law because many people feel that the Amendment guarantees citizens free access to fire arms. The courts have interpreted the Second Amendment as applying only to militia weapons. The federal government and all U.S. states do have some gun control laws. These laws are based on several strategies: forbidding people who are considered to be unreliable from obtaining any firearms; prohibiting anyone other than the police, the military, and persons with special needs from acquiring high-risk guns; and requiring waiting periods before purchasing a gun or a gun license. The most common strategies are based on preventing unreliable people from obtaining guns, such as people who have committed a felony. Federal and state laws also prohibit minors from purchasing guns. In 1993 the U.S Congress passed the Brady Bill, which was named after a former White House press secretary James Brady. Brady and his wife because proponents of gun control after Brady was shot and seriously wounded during the 1981 assassination attempt on President Ronald Reagan (4).
As the debate over slavery gradually changed from being constitutional to unconstitutional so will the debate over gun control. The political culture that once supported slavery changed gradually over time once people saw more and more how unequal it was. It is inevitable that overtime, the political culture on gun control will also change, it will only take a few instances to help in the defining moment on deciding the danger of having a world without restrictions on guns. These moments will be seen throughout our nation in the form of examples of gun-related accidents and kids committing “Columbine High School” like acts. Once these things are taken into consideration only then will our “right to bear arms” be clearly defined. Currently public opinion seems to be in favor of having tighter gun restrictions as was shown with the passing of the Brady Bill. Though with this majority being in favor of gun control these acts of legislation are rather slow in forming, due to the NRA and the vagueness of the Second Amendment. Another hindering factor is that in spite of the public majority being in favor of stricter gun control, the states are moving in a different direction. The reason behind this action is that the constitutionality of tighter gun control laws is becoming a question. Once the Supreme Court of the United States answers this question on the legality of infringing on the right to bear arms we will know what our exact right is.