The Second Amendment: The Gun Controversy

1
Chapter 7

• The Second Amendment The Gun Controversy

2
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.

3
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.

4
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.

5
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.

6
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.

7
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.

8
Individual Rights Advocates

• Madisons 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.

9
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.

10
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.

11
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.

12
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.

13
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.

14
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.

15
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.

16
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 individuals
  right to bear arms, there can be no serious claim
  to any express constitutional right of an
  individual to possess a firearm.

17
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 abusers firearms citing
  the Second Amendment as guaranteeing the
  individuals right to keep and bear arms.

18
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.

19
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.

20
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

21
Concealed Carry Laws

• A public policy research group found that the
  states 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.

22
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.

23
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.

24
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.

25
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.

26
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

27
The National Firearms act

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

28
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.

29
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.

30
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.

31
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.

32
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.

33
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.

34
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.

35
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.

36
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.

37
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 amendments scope.
• The Supreme Court has repeatedly denied
  certiorari (refused to review) in cases in which
  the individual right to bear arms is at issue.