The Role of the Judiciary - Literature review Example

The Role of the Judiciary and The Role of the Judiciary Introduction The United s Constitution is the ultimate law of the United States. It was adopted on September 1787 and by March 1789 it was in effect after being ratified by the required minimum member states. Since its ratification Americans have had some major disagreements over the meaning of some of its provisions and the power shared between the three arms of the government. It is said that the constitution has effectively concentrated the powers in the federal government and neglected the states and the people majority. As a result, the legislature has made some amendments on the US Constitution to try and right the wrongs in some situations and to make clear the unclear (Simmons, 1989). But these amendments too have had their controversies due to changing interpretations of the statutes. This paper will explore the issue of gun control; a constitutional issue that has proven divisive especially after the turn of the millennium when there has been some major fatal shootings. It will explore how the interpretation of the constitution has affected gun control legislation and try to give an opinionated interpretation that will help solve this contentious issue. The United States Constitution The US Constitution is the supreme law of the land and this means that any law that is repugnant to it will be rendered null and void to the extent of inconsistency. Vile (2011) observed that the US Constitution has been a model for other countries’ constitutions because of its comprehensiveness. At the start it was not this comprehensive but the 27 amendments that have been made since its ratification have made it an example for other countries. The Constitution established the Legislature, the Judiciary and the Executive. Through the doctrine of separation of power it assigned responsibilities to each which ought not to interfere with the others’. The role of the judiciary has been to enforce the law made by the legislature. But the judiciary does not simply enact these laws; it also has the responsibility of interpreting the constitution and provides the clear way where there is uncertainty. The Constitution prohibits the legislature from rescinding from what they already legislated, the duty therefore rests on the judiciary to right the wrongs made by the legislature and to interpret the Constitution in the most rational way possible (Vile, 2011). The judicial review is the power that the court has to examine the legislations enacted as Federal law to determine their constitutionality. If the laws are not constitutional then the courts, specifically the Supreme Court, will strike them down solely because the Constitution is the ultimate law (Miller, 2013). This was evident in Marbury v. Madison (1803) where the Chief Justice, John Marshall, asserted that it was the responsibility of the Supreme Court to strike down unconstitutional legislation and protect the spirit of the Constitution at all cost. The Supreme Court can also influence the way some clauses in the Constitution are interpreted without actually amending the actual text in the Constitution by making rulings that set original precedents. The sole purposes of the Constitution as envisaged in its preamble are to establish justice, to foster domestic tranquility, provide for common defense, to promote the welfare and property of the United States citizens and their liberty. McGovern (2012) noted that one of the most contentious issues at the moment that touches on all of these issues is that of gun control. The debate has been raging for centuries now. The critical question is set to determine whether the right to own firearms is an individual or a collective right (Miller, 2013). The Second Amendment of the US Constitution directly relates to the issue of gun control. Over the past centuries the legislature has had different interpretations of the matter, but with changing circumstances and times, different interpretation could be adopted. The Second Amendment The Second Amendment basically protects the right to keep and bear arms. It is one of the ten amendments legislated at the start. It is one of the most widely debated constitutional issues. The raging debate has necessitated increased lobbying from both the pro-gun control and anti-gun control sides. The Second Amendment states that a well regulated militia is essential to the security of a state, consequently, the right of the populace to keep and bear arms, should not be infringed. The contentious issue here, according to contenders, is interpreting what the text actually means and to whom is it actually referring to (Vernick et al, 2011). The other question is whether it is still relevant to hold on to this amendment or whether the changing circumstances have rendered it obsolete and subject to review? The problem of mass shooting that is evident at the moment has been made worse because there are actually very few Supreme Court cases that provide a direction on the matter. The History of the Second Amendment and Gun Control The Second Amendment which brought about the right to keep and bear arms was greatly influenced, and hence derived, from the English Common Law. Madison (1787) noted in the Federal Paper No. 10 that the law was enacted in 1689 during a tempestuous period in the English politics. This law provided that the right to keep and bear arms is a supplementary right to the natural right to self-defense, resistance to tyranny and oppression and, at the time, to civic duty in the defense of the state. The law therefore provided three reasons for owning firearms; to defend oneself, a tool for resistance and help guard the sovereignty of the state. The 1760s is described as the momentous period that inspired the inclusion of this amendment in the Constitution. At this time there was a colonial militia that was made up of the colonist under the British Imperial rule. In the militia there developed two factions as resistance started sprucing up; the Loyalists and the Patriots. The patriots, who favored independence, started sidelining the Loyalists by stocking their own independent armories. When the Imperial British discovered this it established an embargo on firearms, their parts and ammunition on all the American colonies to curtail the spread of resistance. The Americans vehemently protested this decision citing their own right to militia and self defense (Vernick et al, 2011). When the Constitution was made, the legislators made sure that this right is envisaged before its ratification. The original intentions of the legislators, however, are not clearly known; was the Second Amendment meant to grant the right to have arms or was it merely stating the right not to be disarmed? There are several Supreme Court cases that have influenced the interpretations of the Second Amendment. The United States v. Cruikshank (1876) is one such landmark case on a major event that changed the course of this subject after some White Americans had massacred more than 60 Black Americans who were not armed as their killers. Here the Supreme Court interpreted the Second Amendment giving it a regulatory role against the Federal government control of gun possession. The fundamental ruling was that the right to bear arms is not granted by the constitution. Its interpretation is that the right exists independent of that constitutional instrument and that the main purpose of the Second Amendment was rather to draw the protective circle and not necessarily to grant a right that was already in existence. It, in effect, limited the applicability of the Second Amendment to the federal government (Simmons, 1989). The United States v. Miller (1939) gave the powers to the Federal government and the states to regulate the weapon types that the civilians could keep. The Supreme Court instructed that the weapon types allowed to be kept by the civilians should be reasonable, such that the militia is deemed well regulated. Therefore, from 1940s the government has been able to regulate the type of arms that a person could own. This has of late been the subject of contention when several incidences of mass shootings established that there are people owning automatic military-grade weapons, the types they are legally not allowed to own. The District of Columbia v. Heller (2008) is one of the latest landmark rulings by the Supreme Court that affects gun control. In this case, notes Miller (2013), the court expressly held the Second Amendment provision to protect the individual right to possess, own, carry and use firearms. The Different Understandings of the Second Amendment Just like many other laws, the Second Amendment provisions have undergone considerable changes in its approach and understanding. This is primarily due to the changing times and circumstances. The original legislators lived in the 16th Century where the conditions were not the same as they are right now. The understanding of the Second Amendment was that it was necessary for the people at the time since it was necessary for the people to have the power to self-defense, to resist against oppression from tyrants and to defend their own country. Vernick et al (2011) point out that it is important to note that at the time there was no standing army that enforced the protective duty. It was a civil duty of the civilians to defend their states and in order for them to effectively do so they were granted the rights to keep and bear arms. The conditions that prevailed in the 16th Century are not the same as the 21st Century. The right to own arms for self-defense was clearly proclaimed in the ruling in Nunn v. State (1846) where the Supreme Court defeated a move by the state to bar people from carrying pistols openly. It stated that it was part of the natural right to self-defense. Right now there is a military force that is more than capable to defend the country from external attacks and an effective police force for homeland security, hence raising questions of the logic behind the continuous application of these statutes on the basis of self defense and duty to defend the country. It is yet to be determined whether the amendment is still relevant at this day and age. The proponents of this amendment argue that even if people are safe, it is still imperative that to have the Second Amendment in force so as to balance the political power and, most importantly, the military power between the people and the nation. Vile (2011) argues that the Federalists have for so long been accused of wanting to create oppressive regimes, this amendment should remove that risk of tyranny. That understanding of the issue has not changed to date though the opponents view such thinking as a threat to democracy. The Different Approaches The different interpretations by the Supreme Court over the issue of gun control have largely been determined by the different approaches taken towards it. The approaches relate to the determination of whether the right to keep and bear arms is an individual right or a collective right. This debate centers on the first clause about a well regulated militia and its importance to the security of a free state. Some scholars and judges approach it as a prefatory clause; these are the ones who rule that owning arms is an individual right. The meaning of the clause was clarified in the ruling in District of Columbia v. Heller (2008) where it provided that the adjective “well regulated” in that clause simply imposes the notion of proper control and training. In effect, the interpretation meant that the individual right to own firearm is not in any way connected to services in the militia; and that such arms can be used for traditional purposes provided such purposes are lawful such as self defense (Miller, 2013). Another landmark case that used the individual rights model is the McDonald v. Chicago (2010). Here the Supreme Court interpreted the statute and concluded by stating that the word “militia” should be taken to mean members who supply their own arms and nothing more. The contenders of the individual right approach argue that the clause carry more meaning than a mere introduction, stating that the right to keep and bear arms can only apply to a well regulated militia and hence it is a collective right that cannot be enjoyed individually. According to the proponents of the collective rights model, the right can only be exercised by members of the society who are actively participating in a functioning, and most importantly, well organized, militia. McGovern (2012) therefore asserts that the right is thus based on membership of a functioning militia. Except for the United States v. Cruikshank (1876) ruling that indirectly seemed to use the collective rights model approach instructing that the people to look up to the states for protection from internal and external dangers, the majority of the rulings seem to favor the individual rights approach. Conclusion/ Considered Opinion It is evident that the judiciary plays a critical role in the interpretation of the constitution, an essential practice for any progressive country. However, the recent rulings which have applied the individual rights approach could be detrimental to the safety of the American people. My interpretation of the statute is that the right to keep and bear arms is an individual right. The issue of militia should not arise since that was a circumstance at the time of enacting the Second Amendment which is presently is not a factor. If the collective approach is embraced then it is akin to prohibition of owning firearms since there are no militia groups in the country any more. The task of protecting the people from external and internal attacks is effectively being discharged by the military and the local and state police. But this should not be construed to mean that the people should not have the right to defend themselves and instead put all their faith in a fallible system (Miller, 2013). In light of the escalating incidences of mass shootings, however, it is prudent to point out that the literal application of the statute is proving to be detrimental to other people’s safety. The theatre shootings in Aurora, Colorado where James Holmes killed 12 and injured more than 70 people showed how the gun control system is flawed. People like Holmes can only be apprehended after committing such crimes and it becomes too late to act. And since prevention is better than cure, it is imperative that the gun control measures be implemented so that the access to guns can be limited to a particular group of people (McGovern, 2012). The ruling on United States v Rene E, 583 F.3d 8 (1st Cir. 2009) which convicted a juvenile for gun possession, rejecting the defendant’s argument that the court is infringing on his Second Amendment right provided a light of hope in determining the people who can own firearms; those that pose no danger to the public. The popular opinion, despite these incidences of mass shootings and murder, is that the individual right interpretation should be used. This should ensure that people not only have the tools for their own protection but are also empowered to fight tyranny and its oppression and against any dangerous external attacks. This view is also supported by George Mason who once quipped that the most efficient way of one can enslave people is by disarming them (Vernick et al, 2011). The interpretation should however be accompanied by the necessary legislation that should effectively define the type of people that can own the firearms and the type of weaponry that an individual can own in addition to adequate scrutiny of the buyers and sellers of these firearms. References Primary Sources District of Columbia v. Heller, 554 U.S. 570 (2008) Madison, J. (1787). The Federalist Paper Number 10 Marbury v. Madison, 5 U.S. 137 (1803) McDonald v. Chicago, 561 U.S. 3025 (2010) Nunn v. State, 1 Ga. (1 Kel.) 243 (1846) United States v Rene E, 583 F.3d 8 (1st Cir. 2009) United States v. Cruikshank, 92 U.S. 542 (1876) United States v. Miller, 307 U.S. 174 (1939) Secondary Sources McGovern, O. (2012). The responsible gun ownership ordinance and the novel textual questions about the Second Amendment. Journal of Criminal Law and Criminology, 102(2), 471-496. Miller, D. (2013). Text, History and Tradition: What the Seventh Amendment can teach us about the Second Amendment. Yale Law Journal, 122(4), 852-938. Simmons, R. (1989). The United States Constitution: The First 200 Years. Manchester: Manchester University Press. Vernick, J., Rutkow, L., Webster, D., & Teret, S. (2011). Changing the Constitutional Landscape for Firearms: The United States Supreme Court’s Recent Second Amendment Decisions. American Journal of Public Health, 101(11), 2021-2026. Vile, J. (2011). A Companion to the United States Constitution and Its Amendments. New York: Rowman & Littlefield Read More