Political Significance of the Second Amendment - Term Paper Example

? (The of your Political Significance of the Second Amendment One of the hottest topics of political debate is the problems against crimes especially involving violence and guns. The Second Amendment to the Constitution of the United States has become of the most thwarting if not embarrassing provision of the Bill of Rights. There is an increasing body of literature examining the original meaning of the Second Amendment and boiling debate over the desirability and efficacy of the gun control legislation (Lund, 1987). Despite this, Lund (1987) stated that no one has attempted to develop an interpretation of the Second Amendment that fits comfortably within the Supreme Court’s modern jurisprudence of individual rights. When the issues are conflicting with each other, the highest court remained silent. The Supreme Court keeps silent about the issues and interpretation of the Second Amendment. It diverts itself to other issues such as adjustments in constitutional rules of criminal procedure and doctrines affecting obscenity, libel and time, place, and manner restrictions on speech, the Second Amendment are simply ignored (Lund, 1987). This paper will review the true meaning of the Second Amendment and the cases of the Supreme Court which illustrate the controversy of the topic. The Real Meaning The Second Amendment states that “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.” The controversy arise from the phrase “a well regulated Militia, being necessary to the security of a free State” where one group of commentators treats the phrase simply as statement of purpose and maintains that the Second Amendment individual rights to keep and bear arms (Lund, 1987). According to Lund (1987), other group claims that it is to be regarded as an exclusively collective right, the right of the states to maintain organized military forces. The right to bear arms often is defended in terms of hunting, sport and, above all, self defense. But more often than not, a lot missed the point that the original constitutional raison d’etre had nothing to do with self-defense, sport or hunting (Noga, 2011). Noga (2011) stated that the right to bear arms is a political right. The time the Bill of Rights was proposed, British tyranny was fresh in everyone’s mind; hence, it was to fight tyranny that the second amendment was adopted (Noga, 2011). The Second Amendment was all about protecting liberty and countering the threat from a standing army (Noga, 2011). But still, in the pre ratification debate, both Federalists and Anti-Federalists agreed the federal government should not have any authority at all to disarm the citizenry (Noga, 2011). There are conflicting understandings of the phrase stated above. The laypersons or ordinary prudent men favour or understand the “individual right” interpretation of the Second Amendment. On the other hand, those who belong in the academe and court, the “collective right” interpretation is more dominant. The reason why this “collective right” interpretation is more dominant than the “individual right” is because the leaders or those in the legal profession believe and favour the restrictive regulations on the ownership and use of firearms as a matter of social policy (Lund, 1987). According to Lund (1987), the advocates of the “collective right” interpretation focus almost exclusively on the text “well regulated Militia” which they argue that it implies the right to keep and bear arms is strictly restricted to officially organized military units. However, the term Militia was used. This is why until now there is no clear meaning of the Second Amendment because there is no clear and agreed meaning of the term “Militia." But there were arguments on what the term “Militia” protects. Some argued that the Second Amendment did not mention the right of state to regulate the militia (Lund, 1987). It is argued if the state right should be protected or the individual right. The constitution has tend to interpret the Second Amendment as an individual right. This means that it is established that the Second Amendment protects the individual’s right to keep and bear arms (Lund, 1987). But this is only an initial step to developing a sound or fixed interpretation of the constitutional guarantee. Constitutional Cases of Second Amendment The first Second Amendment case to reach the Supreme Court was the Cruikshank case. But this case is rarely misrepresented as holding the Second Amendment that does not protect the right of an individual to keep and bear arms. The case is usually cited out of the context by claiming that the court held the Second Amendment “is not a right granted by the Constitution.” The case of Cruikshank et. al. were charges to deprive two blacks of the First and Second Amendments. In the case of the Second Amendment, the court wrote that: The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called..."internal police" U S v. Cruikshank, 92 U.S. 542 (1875). The Court held that federal government had no power to punish a violation of the right by a private individual since the right to keep and bear arms survived independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be infringed by Congress. The citizens had "to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state. Thus individuals are not allowed to file charges against other citizens in federal court regarding violations of their constitutional rights. The states shall be responsible to protect the fundamental rights of its citizens when their rights were abridged by their fellow citizens. The latest case that reached the Supreme Court was McDonald v. Chicago (08-1521) held earlier last year. The case was compared to the case of District of Columbia v. Heller, a case which overturned a handgun ban in Washington D.C. The District of Columbia is under the federal jurisdiction making the ban a federal measure. The residents of Chicago wanted the right to have a handgun for self-defense purposes and they asked the court to declare Chicago law banning handguns unconstitutional. However, this case is a bit different than that of Heller’s case because Chicago’s ordinance was purely local (Witt, 2010). But Chicago’s law does not expressly prohibit handgun ownership, but the law requires all owners of firearms to apply for a permit. Most handguns are excluded from the list of approvable firearms, therefore making it nearly impossible for any resident to own a handgun McDonald v. Chicago (08-1521). The Supreme Court ruled for the plaintiffs in a 5-4 decision which means that it was a close fight between the concurring and dissenting justices. Justice Alito wrote the widely held opinion together, for the most part, by Chief Justice Roberts, Justice Kennedy, Justice Scalia, and Justice Thomas (Witt, 2010).  It can be noted that this is a close battle of the justices and this somewhat weakens the authority of the case, but the fact remains that the plaintiffs won and the Chicago handgun ban was overturned. The case was an issue of Due Process incorporation according to Justice Alito. Before the Civil War, much of the Bill of Rights was believed to only be applicable against the federal government and not the state or local government (Witt, 2010). It can be illustrated such that one’s right to bear arms only applied against the U.S. Congress, not the local state legislature of city government (Witt, 2010). The Supreme Court held that not all of the Bill of Rights has been held applicable against the state.  The second amendment is one outstanding exception. In the past, court judgments have held that the state and local governments can control guns in ways that the federal government could not (Witt, 2010).  The Supreme Court used the test whether “a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice” and applying this test to the case, Justice Alito determines that “self defense” is basic right and central component of the second amendment.  Furthermore, Justice Alito determines that the right to own a handgun is part of this basic right to self-defense. He relied to earlier Heller decision for much of the support behind his reasoning that the right to own a handgun is a “fundamental” right.  Relying on Heller decision, it can be said that this was the real “game changer” which established an individual right to own and possess a firearm under the 2nd amendment. Significance of Second Amendment It is very important to know the political significance of the Second Amendment. The Second Amendment protects our right to keep and bear arms. And this private right is regulated for the purpose of a public good. The private right of access to firearms is constitutionally protected, at least to the extent that it reasonably contributes to political freedom (Lund, 1987). We can say that the Constitution was designed to deal with the defense of the country. The Second Amendment can be said to help maintain and establish a powerful and organized military force. It can be that the government wants to ensure potential soldiers to be trained in the use of firearms. The Second Amendment also implies a protection for a civilian counterweight government's forces avoids the assumption that civilians have a right to sawed-off shotguns if, and only if, the military issues such weapons (Lund, 1987). But to a person’s life, being able to obtain a license to carry a handgun can mean safety and life. There were incidents that disproved public’s belief or prediction that crime rates will go up. Gracia Rosemary Ritcher witnessed how a gun preserved and protected human life. An old man with a licensed gun was able to save himself from two boys who broke into his home. But there were controversies at the time of the incident. But isn’t it normal to save your life from harm? Human has natural instincts to protect one’s life and prolong life. Every person has a desire to ensure safety. What is important is to teach and help understand gun-control. The Second Amendment can make the world a safer place (Ritcher, 2008). The Second Amendment could also offer some protection against the danger of political oppression (Lund, 1987). But this is not the reason why people or the citizens want to own or possess an arm. The citizens are more concerned of defending themselves against violence and the failure of the government to protect them. The framers failed to distinguish between the “personal safety” and “political safety” (Lund, 1987). According to Lund (1987), one possible explanation on this is because at the time of the Amendment's adoption, America retained a predominantly rural culture with a frontier ethos, and no one had any reason to expect that a popularly elected government would have any motive to interfere with its citizens' ability to defend themselves against the hazards of everyday life. There is still no definite answer whether the Second Amendment’s purpose is to extend to personal self-defense. It is also helpful for us to consider the liberalist theory of right to self-defense. According to the supporters of liberal democracy, the person’s right to self-defense is the most fundamental rights. Most of the liberal theorists believe that the government instituted primarily to secure individuals from various threats to their personal safety and well-being (Lund, 1987). According to Lund (1987), the essence of the all social contract theory is that individuals relinquish some portion of their natural rights in exchange for political rights that are thought to better protect their interest in self-preservation and personal prosperity. It can be noted that the political significance of the Second Amendment is that affects political freedom and self-preservation. The Second Amendment is still under a great controversy of its real meaning. Until this time there is still no definite effect or impact of the Second Amendment. The effect of the Second Amendment in today’s society is still minimal. But we can say that its main effect is that it preserves the right of the citizenry to keep weapons for self-protection. But we still cannot determine if the protection’s impact led to more gun deaths or not. Conclusion Until now, the biggest challenge is to devise an interpretation of the Second Amendment. Up to this date, there is still no fixed interpretation that can be adopted by the Supreme Court. The Second Amendment protects the individual’s right to keep and bear arms. This helps protect both political freedom and the individual’s most fundamental right of self-defense. Given the discussed cases from the first to reach the Supreme Court to the latest case decided, the Supreme Court is said to claim that the Second Amendment is more of an “individual right” than a “collective right.” It suggests that the proper interpretation of the Second Amendment would protect the legitimate uses of firearms without making the possession of guns a sacrosanct and inviolable privilege (Lund, 1987). References: District of Columbia v. Heller, 554 U.S. 570 (2008) Lund, Nelson. The Second Amendment, Political Liberty, and The Right to Self-Preservation, (1987). Web. 27 April 2011 McDonald v. Chicago (08-1521) Noga, George. Real Meaning of the Second Amendment, (2011). Web. 28 April 2011 Ritcher, Gracia Rosemary. The Second Amendment and its impact on the United States and Beyond, (2008). Web. 28 April 2011 Witt, Ryan. A full summary and analysis of the McDonald v. Chicago Supreme Court Case, (2010). Web. 27 April 2011 U.S. v. Cruikshank, 92 U.S. 542 (1875) Read More