Is There a Constitutional Right to Possess a Firearm for Private Use - Research Paper Example

Is there a constitutional right to possess a firearm for private use? Introduction The Second Amendment of the US Constitution specifies 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”. Based on these provisions alone, the right to bear arms seems to be clear cut and legally protected, especially as far as protecting the security of the people is concerned. The interpretation of this amendment, as well as the interpretation by the Supreme Court has provided guidance for the people on the application of these laws. This paper now seeks to review if there is a constitutional right to possess a firearm for private use. This paper shall provide a background for this case, including any court rulings related to this case. It shall also include the reasoning for the decision, and how it affects the people and the operations in the justice system. Body The Second Amendment provides a general rule for the right to bear arms, and under such provision, the right to possess firearms for private use seems to be clear-cut and undeniable. The Supreme Court has provided various rulings for the application of this right. In the 2008 District of Columbia v. Heller case, the SC held that the Second Amendment indeed protects the right of the people as private citizens to bear arms. This ruling basically declared that individuals were legally protected in their right to keep a loaded gun in their home for their self-defense (Vicini, 2008). This ruling however did not settle any misgivings on the part of individuals who did not favor the legalization, as well as the widespread use and bearing of arms. To this date therefore, this ruling is still controversial; and for various individuals with legal considerations on the case they would not likely hesitate in seeking other interpretations of this right by the courts. The right to bear arms has long since been considered a universal right, especially during the earliest years of the world’s history when wars were rampant and disputes were often settled through violent skirmishes (Hollister, 1962). The precursors of guns included bows and arrows, spears, and other harmful and deadly weapons, like swords and daggers. The right to possess and bear arms was firmly supported, retained, and expanded. All serfs, tenants, and subjects of the state and of the crown were required to bear arms in order to protect the state (Lyon, 1980). Various evolutions of armaments and weapons were seen throughout the years, and the people were also required to bear arms when they would travel, attend fairs, or when they would go to markets (Lyon, 1980). The people were even asked to train in the use of long-bows and other arms in order to ensure their protection. In the 1500s in England, the crown decided to ban firearms (meaning, bows and arrows); instead a militia was to be trained in the use of these arms (Bagley and Rowley, 1965). This militia would be considered the armed citizenry of the English political system. This move however backfired when the militia turned on the crown and gained temporary control of the government (Bagley and Rowley, 1965). This prompted the Parliament to order the search and destruction of all arms from all opponents of the crown. As the crown was later restored, the military government’s reign ended. In general, all arms by the militia were banned and confiscated (Malcolm, 1980). This control of the militia was carried over to the control of Britain over its American colonies. After persistent moves by the British government to control its American colonials, including their rights to bear arms, the need to protect the right to bear arms became an even bigger necessity (Patterson, 1973). Scholars however were quick to point out that the right to bear arms was indeed the right of individual citizens, but must be based on the peaceful intent and manner in the use of such arms. This peaceful basis was supported by the historical development of this right to bear arms (Patterson, 1973). The formulations of Thomas Jefferson and Samuel Adams also reflected these same ideals and goals. The right to bear arms was also based on individual rights of the people which were distinguished from the rights of the people and the state (Thurmond, et.al., 1982). The term militia represented universally armed individuals; and the framers intended the authority to bear arms for a select militia not for the general militia (Thurmond, et.al., 1982). In effect organized militia units are actually considered as threats to freedom and have not been authorized intentionally by the framers of the constitution to bear arms. The National Guard is not regarded by the Congress as a militia and they have recognized this group as part of their right to raise their armies and discipline the militia (Thurmond, et.al., 1982). Based on the above historical conceptualization, it is therefore apparent from the Second Amendment of the Constitution that the right to bear arms by private citizens is indeed a constitutionally protected right, but it is one which is based on a peaceful manner of bearing such firearms (Thurmond, et.al., 1982). Throughout the years, the Supreme Court has come up with various interpretations of this right. As mentioned above, a 2008 case decided in favor of the right of private citizens to own handguns as a means of self-defense. This was in the case of District of Columbia v. Heller. No other SC ruling has made any definite stance on the Second Amendment, mostly because this Amendment seems to be filled with much ambiguity (AFP, 2008). Interpreters of the amendment are divided on this amendment. Some argue that the Second Amendment seeks to limit the right to bear arms for military situations only. Others argue that the Second Amendment merely serves to prepare for the eventual use of any firearms in the military (AFP, 2008). Justice Scalia and Williams provide opposite decisions and interpretations of the right. Through Scalia’s majority opinion, the court declared that the Second Amendment secures the right of individuals to possess firearms which may not be related to any service in a militia; and to use such firearms for lawful purpose, including self-defense in one’s home (Epstein and Walker, 2009). The prefatory clause of the Second Amendment establishes a purpose, however does not restrict or increase the coverage of the second clause which is the operative clause. The operative clause declares a determination to keep and bear arms (Epstein and Walker, 2009). The prefatory clause also supports the majority interpretation of the operative clause. Moreover, they define militia groups to be groups which act together to secure common defense principles (Epstein and Walker, 2009). The court also ruled that the Second Amendment is not unlimited because it does not allow the carrying of weapons for other purposes other than defense. In this regard, concealed weapons are considered illegal (Charles, 2009). Moreover, the ruling of this court does not render ineffective the previous laws and rulings on the prohibitions given on the mentally ill and felons on bearing arms; it also carries the same rules on the carrying of firearms in sensitive places including schools, government buildings, and other public places (Charles, 2009). In general, the court was therefore clear in spelling the circumstances by which the right to bear arms applies for private citizens. This majority opinion was opposed by other SC justices. Stevens’ argument serves as basis for another conceptualization of this paper. In Stevens’ dissenting opinion, he declared that the original founders of the Constitution would not expressly have stated the ‘individual right’ element, if they did not intend such part to be wholly effective (Charles, 2009). Stevens also argued that the term militia also precedes the phrase “to keep and bear arms”; and therefore this implies that the Second Amendment refers to state militia service only (Gerber, 2011). Finally, Stevens also argues with the majority court decision because the court has not considered Gun Control laws to be unconstitutional. He also believes that the Framers of the constitution did not seek to restrict the tools of the state to control civilians in their use of weapons (Gerber, 2011). Justice Breyer also discussed that there is no “untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas” (District of Columbia v. Heller, 2008). Gun laws must therefore be balanced with interests of Second Amendment protection against government purposes of preventing crime. Conclusion In reviewing the discussion above, it is apparent to note that the issue of gun possession for self-protection is a very controversial and unsettled issue. Despite the SC’s majority decision on the issue, the dissenting opinions of other justices also present with valid points which fills this issue with significant gaps in interpretation and application. Nevertheless, it is important to note that in returning to the original purpose of the framers of the constitution, they were clearly seeking to protect the right of the people to bear arms. The extent to which this right applies, including the personalities who can claim this right is the real issue. However, the need for individuals to protect themselves in their homes, especially when their lives are threatened is unquestionable and constitutionally protected. The Second Amendment, as well as the Supreme Court has set a precedent for the constitutional right of a person to possess a firearm for private use. Despite protection for this right, other legal provisions still apply in order to secure the appropriate application of this right. References AFP (2008). US Supreme Court hears historic gun rights case. Retrieved 29 March 2012 from http://afp.google.com/article/ALeqM5jzed0VxlZG6lVkzLYze5m5z012iw Bagley, J. & Rowley, P. (1965). A Documentary History of England. New York: Oxford University Press. Charles, P. (2009). The Second Amendment: the intent and its interpretation by the states and the Supreme Court. New York: McFarland. District of Columbia v. Heller, 554 U.S. 570 (2008) Epstein, L. & Walker, T. (2009). Constitutional law for a changing America: Rights, liberties, and justice. New York: CQ Press. Gerber, L. (2011). The Second Amendment: The Right to Bear Arms. New York: The Rosen Publishing Group. Hollister, C. (1962). Anglo-Saxon Military Institutions. New York: Oxford University Press. Lyon, B. (1980). A Constitutional and Legal History of Medieval England. New York: Oxford University Press. Malcolm, J. (1980). Disarmed: The Loss of the Right to Bear Arms in Restoration England. Massachusetts: Radcliffe College. Patterson, S. (1973). Political Parties in Revolutionary Massachusetts. Wisconsin: University of Wisconsin Press. Thurmond, S., Mathias, C., Biden, J., et.al. (1982). The Right to Keep and Bear Arms. Retrieved 29 March 2012 from http://www.constitution.org/mil/rkba1982.htm Vicini, J. (2008). Americans have right to guns under landmark ruling. Reuters. Retrieved 29 March 2012 from http://www.reuters.com/article/2008/06/26/us-usa-guns-court-idUSWBT00928420080626 U.S. Const. amend. II. Read More