Domestic Crime Rate and the Right to Bear Arms - Research Paper Example

? Domestic Crime Rate and the Right to Bear Arms of the of the Domestic Crime Rate and the Right to Bear Arms Introduction Domestic crime rates will increase if the Second Amendment rights were to be abolished by the government. The following discussion establishes this contention. The Second Amendment to the US Constitution declares that a well – regulated Militia is essential for preserving the security of a free state. Consequently, there should be no infringement of the people’s right to bear arms. With the decision in Heller, the import of the Second Amendment was no longer unanimous and differences began to crop up as to its meaning. Prior to this decision no court in the US had invalidated any law, on the grounds of being in violation of the Second Amendment (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). The chief legal reasons behind such unanimity are described in the sequel. One of these entails the incorporation doctrine. At the time of the ratification of the US Constitution, the majority of its provisions had stipulated the extent and limits of the authority of the federal government. In the initial stages, the protections described in the Bill of Rights, pertained only to the powers exercised by the federal government and not the state governments (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). However, in the year 1868, this situation underwent a far reaching change. This was due to the ratification of the 14th Amendment, which strictly precluded any state from depriving the property, life, or liberty of any person, in the absence of the due process of law. This caused the US Supreme Court to decide that the majority of the guarantees, inherent in the Bill of Rights, were incorporated in the more general language of the 14th Amendment, as a restriction on the powers of the state and not merely the federal powers (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). All the same the court rejected the contention that the Bill of Rights had been incorporated in its entirety, and adopted a case by case approach. Subsequent to the decision in McDonald the Second Amendment was removed from the class of the very few parts of the Bill of Rights that had not been so incorporated. Furthermore, in Unites States v Cruikshank and Presser v Illinois, the court held that the Second Amendment restricted only the federal government. Several of the state laws relating to the ownership of guns have been upheld on the basis of these decisions (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). Main Body The Gun Control Act of 1968, provides that no convicted felon should possess firearms. This has been amended by the Lautenberg Amendment, which extends the preclusion of firearms possession to individuals convicted of misdemeanor crimes of domestic violence. This amendment was aimed at preventing the convicted perpetrators of domestic violence from carrying firearms (Guns and domestic violence, 2008, p. B4). In addition, armed domestic abusers pose a very great risk. In fact, around 67% of the females who are killed by firearms have been shot by their intimate partner. The weapon of choice in intimate partner homicide is the firearm. There is a five – fold increase of risk of homicide for females, when firearms are present in the home. These are indeed disquieting figures, and such data induced Congress to amend the Gun Control Act on several occasions. For instance, in 1994, an amendment was made to this Act, which precluded any individual subject to a domestic violence protective order, from possessing a firearm. This was followed, in the year 1996, by the Lautenberg Amendment, which prohibited any individual convicted of a misdemeanor crime of domestic violence from possessing a firearm (Wilkinson & Meisner, 2011). However, in the absence of the necessary level of regulation and supervision over entities that could make substantial profits by evading the laws, an effective gun control mechanism cannot be implemented. To its discredit, Congress has persisted in weakening regulation, oversight, and accountability of the federally licensed gun dealers. Moreover, the 1986 Firearm Owners Protection Act has lessened the penalties for violations of the gun sales law, enhanced standards of evidence for prosecuting gun sellers, and reduced the compliance inspections conducted by the Bureau of Alcohol, Tobacco and Firearms (Webster, et al., 2012). Moreover, a study was conducted on the influence of a California law that enlarged firearm prohibitions to include individuals convicted of misdemeanor crimes of violence. In addition, a study related to legal purchasers of handguns in California before and after the enactment of the law showed that there had been a reduction in violence among those convicted of misdemeanor crimes (Webster, et al., 2012). In the famous case of Heller, Judge Sykes ruled that a two stage approach had been established with regard to gun restrictions. The first stage was whether the regulated conduct came under the ambit of the Second Amendment, on the basis of the original public understanding. This was deemed to have been established in Heller. This case did not suggest that firearms used for hunting were beyond this protection (Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc), 2011, p. 1075). Thereafter, Sykes examined the appropriate standard of review. He concluded that under Heller rational basis was foreclosed and that strict scrutiny would be inappropriate, due to the fact that the rights of violent offenders were not crucial to the Second Amendment right (Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc), 2011, p. 1075). Consequently, with regard to § 92 2(g) (9), Sykes limited the application to intermediate scrutiny. His aim was to establish a reasonable correspondence between a significant government objective and the method selected to achieve this objective. At this juncture, the panel determined that the government had failed to demonstrate such a correspondence by furnishing empirical evidence regarding the relationship between the possession of firearms and domestic violence, and remanded for further fact finding. A rehearing by the entire bench was granted by the Seventh Circuit, and it confirmed the decision of the district court to deny the motion seeking dismissal of the indictment (Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc), 2011, p. 1076). With the decision in District of Columbia v Heller, it became established that the Second Amendment empowers an individual to bear arms for self – defense. Nevertheless, the US Supreme Court clarified that its decision would not affect the longstanding and presumptive lawful restrictions on firearms. An instance of these restrictions is the law that preclude possession of firearms by felons (Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc), 2011, p. 1074). Subsequent to the decision in Heller, the lower courts have been forced to formulate their own approaches to assessing the constitutional validity of a number of regulations relating to firearms. This trend was reiterated by the Seventh Circuit en banc or full bench decision in United States v Skoien. In its ruling this Court upheld the constitutionality of 18 USC § 92 2(g) (9). This disallows the possession of firearms by an individual convicted of a misdemeanor of domestic violence (Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc), 2011, p. 1074). In this case, Skoien had been convicted twice for domestic battery. This is a misdemeanor, and he had been convicted by a Wisconsin state court, in the years 2003 and 2006. In 2007, a shotgun was unearthed by probation officers from his truck. Skoien divulged the information that he had been using this weapon for killing deer. Subsequently, he was indicted for breach of § 92 2(g) (9), which precludes the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence (Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc), 2011, p. 1075). However, Skoien contested the validity of the statute, but his motion to dismiss the indictment was turned down by the district court. The latter held that the provisions of the statute had been rendered highly focused and applied solely to those who had been found guilty by a court of domestic violence (Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc), 2011, p. 1075). Another reason that had made it convenient for the courts to promote gun laws, prior to the decision in Heller and McDonald, related to the language of the Second Amendment. To be precise, the militia clause that was place prior to the right to bear arms, was instrumental in upholding the gun laws. In the 1939 case of Miller two individuals had been subjected to criminal indictment, under a federal law that restricted sawed – off shotguns (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). These indictments were upheld by the US Supreme Court. In its decision, the court declared that the Second Amendment did not protect the right to bear firearms, unless there was a reasonable relationship to the preservation of a well – regulated militia. This ruling was subsequently employed by the lower courts to uphold state and federal firearm laws (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). To some extent this tendency among the courts changed with the decision in Emerson. In this case, a restraining order had been served upon Emerson, who was charged with domestic violence. He was precluded from possessing a handgun, due to the restraining order. Emerson, contested the constitutionality of this federal law in the federal district court (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). The federal district judge concurred with Emerson and held that the Second Amendment granted individuals with a right to possess and bear arms. He also held that this right was independent of any correlation with militia service. This decision was appealed in the Fifth Circuit Court of Appeals, which refused to discount the federal law. This higher court also concluded that the right provided by the Second Amendment was not absolute and that it was subject to limited and specific exceptions that were reasonable in nature (Vernick , Rutkow , Webster , & Teret , 2011, p. 2022). Moreover, the proponents of gun control refer to statistics that apparently depict several children succumbing to violence caused by guns. Thus, these entities cite that some 4,000 children die due to guns every year. A deeper scrutiny of such statistics discloses that those in favor of gun control are portraying a false and alarming picture of the reality (What about children and guns?, 2013). These proponents of gun control have included youth aged 20 years or younger in their classification of children. In fact, a few of these groups have even classified 23 year old people as children. These incorrect definitions of children tend to increase the number of children killed to 11 per day. On the other hand, if children are individuals less than 10 years of age, which is the common definition of children, then the number of daily deaths reduces to 0.4. The reason for this huge difference is due to several factors. For instance, gang related violence causes a number of deaths, and the members of these gangs are teenagers and those above 20 years of age (What about children and guns?, 2013). In addition, this upper age limit serves to include deaths due to the drug trade. In this trade, if an agreement fails, then the usual reaction is violence that involves firearms. Accordingly, such failed agreements have a large number of deaths. Furthermore, a drug dealer, who could be less than 23 years old, may resist arrest by opening fire on law enforcement officers. This could result in the death of the drug dealer (What about children and guns?, 2013). Furthermore, as of the year 1996, children less than 9 years of age, who had succumbed to accidental gunshot wounds were 42 in number. In that very same year around 2,400 children had died in motor vehicle accidents, 800 had died due to drowning, and 738 had died of burns. These statistics show that guns do not constitute a safety hazard to children. In addition, guns can be utilized to protect these children and can make their homes safer (What about children and guns?, 2013). However, in the late 1970s a more critical approach was adopted by researchers towards domestic violence and isolated incidence, precursors, and indicators. Similarly, legislative action to address domestic violence, is a recent development (Browning, 2010, p. 275). Domestic relationships consist of violent and non – violent behaviors. Several studies have disclosed that men tend to play down domestic violence in their relationships. This tends to distort statistics that depend on self – reporting (Browning, 2010, p. 276). Although, a certain amount of inaccuracy is to be found in the statistics, Congress chiefly relies on statistical studies, while making legislation aimed at addressing domestic violence. The Violence Against Women Act (VAWA) is a Congressional initiative to combat domestic violence. It was enacted as a component of the Violent Crime Control and Law Enforcement Act of 1994 (Browning, 2010, p. 276). As such, the VAWA renders it a federal crime for a person to travel in interstate commerce, with the express intention of causing harm or intimidating a domestic partner. This also requires the commission of a violent crime against that partner by that person (Browning, 2010, p. 276). The VAWA is just one of the several statutes that have been enacted to address domestic violence. Past, present and potential victims can claim protection and redress from domestic violence, by taking recourse to the VAWA. This statute provides for several penalties for violations that are determined by the seriousness of the physical injury caused to the victim, and whether a weapon had been used during the violence (Browning, 2010, p. 277). Moreover, guns, like motor vehicles, should be required to bear a title. In addition, gun owners should be required to show cause to a judge, as to why they should be permitted to carry concealed weapons in public. Furthermore, the list of public places, where guns cannot be carried, should be increased (Gun Control Tougher Limits Might Reduce Domestic Violence, 1997, p. A8). In Hayes, the majority decision of the US Supreme Court confirmed the use of a federal law that precluded individuals convicted of domestic violence crimes from possessing firearms. The Court also held that the state laws relating to battery were not required to specifically mention domestic violence, for the domestic violence gun prohibition to be applicable (Supreme Court Upholds Domestic Violence Gun Control, 2009). While delivering the opinion, Justice Ginsburg stated that it was sufficient if the victim of such a crime had been involved in a domestic relationship with the attacker. It was her considered opinion that domestic strife in conjunction with firearms could have fatal consequences. This case involved Hayes, a West Virginian who had previously been convicted of brutally beating his wife, which created a federal felony indictment for possessing a gun (Supreme Court Upholds Domestic Violence Gun Control, 2009). A ruling by the US Supreme Court, setting aside Hayes’ indictment for firearms possession, subsequent to a misdemeanor conviction for domestic violence would have served to enervate the federal law. This was due to the fact that half of the states, including West Virginia, where the crime occurred, did not have an explicit description regarding a domestic relationship between the victim and the offender. Moreover, that interpretation had been rejected by 9 courts of appeal (Supreme Court Upholds Domestic Violence Gun Control, 2009). In the year 1994, Hayes had beaten his wife, and ten years later the police responded to a domestic violence call from the home of the Hayes. At that place, the police chanced upon a Winchester rifle that belonged to Hayes. It was subsequently discovered by the police that Hayes had been in the possession of four more rifles after the 1994 case. Ginsburg made it very clear in her ruling that excluding domestic abusers convicted under generic laws, would only serve to defeat the manifest objective of Congress (Supreme Court Upholds Domestic Violence Gun Control, 2009). The Gun Control Act is famous for its endeavors to contain domestic violence. This Act has established stringent regulations relating to the manufacture, sale, transfer, and possession of ammunition and firearms. The individuals who are prohibited by this piece of legislation, from shipping, transporting, possessing or receiving firearms or ammunition in interstate commerce, have been classified and described at section 922(g) of this Act. Such individuals have been broadly delineated into nine categories (Browning, 2010, p. 279). The ninth category of prohibited individuals was appended to this Act, by Congress, in September 1996. This exercise was a part of the Omnibus Consolidated Appropriations Act of 1997, and is termed as the Lautenberg Amendment. It makes it illegal for any person convicted of a misdemeanor crime of domestic violence to ship, transport, possess, or receive ammunition or firearms in or affecting commerce (Browning, 2010, p. 279). Senator Lautenberg, the proposer of this amendment, was justifiably concerned that federal gun laws precluded on the convicted felons from possessing firearms. On the other hand, several of the abusers and batterers were convicted merely for misdemeanors. With this amendment, a hazardous loophole was closed. This effectively deprived violent individuals who threaten their families, of firearms (Browning, 2010, p. 280). The use or attempted use of physical force by the offender is essential for categorizing a person as having been convicted for a misdemeanor crime of domestic violence under section 922(g). Although, the statute describes the classes of domestic relationships that must persist between the offender and the victim for the existence of a crime of domestic violence; the Eight Circuit and the Bureau of Alcohol, Tobacco, and Firearms have declared that there is no necessity for a predicate offense to include an explicit element that refers to domestic violence. Moreover, the Bureau of Alcohol, Tobacco, and Firearms has defined misdemeanor crime of domestic violence as misdemeanors that entail the use or attempted use of physical force, if the offense is perpetrated by one of the defined parties. This is independent of whether the offense has been explicitly defined as a domestic violence misdemeanor by the local ordinance or State statute (Browning, 2010, p. 280). The following case law reveals the attitude of courts in deciding cases of misdemeanor crime of domestic violence. For instance, the decision in Hays, was similar to that in Flores v Ashcroft. In the latter case, the defendant had pleaded guilty to a misdemeanor crime of domestic violence. The defendant, Flores had been served with an order barring any contact with his wife, the victim of his violence. He had attacked and beaten her, and the Indiana statute to which he pleaded guilty stated that battery included even touching in an angry, insolent, or rude manner. The term crime of violence was addressed by the court, and it concluded that touching and injury were logically related to the use of force under section 16(a) of the Act (Browning, 2010, p. 283). It was determined by the court that it was important to maintain the boundaries between violent and non – violent offenses and confirmed that force should connote violence. Thus, in the Belless case, the Ninth Circuit ruled that physical force, as per the provision under title 18 section 921(a)(33)(A)(ii) required the violent application of physical force against another individual. Mere contact or touching would fail to satisfy this definition. Belless had undergone a misdemeanor conviction, and was found to illegally possess a firearm (Browning, 2010, p. 284). Moreover, in Smith, the misdemeanor assault conviction of the defendant was deemed to satisfy the physical force requirement of section 922(g) (9). The defendant shot and wounded the victim, during an act of domestic violence. The Iowan statute relating to assault declares that generic assault, could include subjecting another person to the fear of imminent physical contact (Browning, 2010, p. 287). Conclusion The Second Amendment Rights to bear firearms is not an exclusive right granted by the constitution. It does have limitations to provide a restraint on bearing firearms under certain circumstances. The federal law and the laws of many states do not permit an individual who has been convicted of a misdemeanor of domestic violence or who is under a restraining order to possess a firearm. However, there are several shortcomings, when it comes to implementing these laws. There is considerable scope for improving the situation, and there should be proactive initiatives to confiscate weapons from the prohibited intimate partner violence offenders. All the same, laws that preclude the possession of firearms by such individuals, actually bring down instances of domestic homicide. Reckless act of violence could be significantly reduced by having tougher gun control law in place. It would indeed be very helpful, if a license had to be obtained by every purchaser of a handgun. In addition, the license should be provided only after the purchaser had completed a course on the responsible use of firearms. Although there are many laws on gun bearing by those convicted of misdemeanors, due to flaws in implementation, domestic violence could not be controlled satisfactorily. Moreover, variation in the laws from state to state, has served to complicate the issue. The cases discussed above, evidence the fact that persons convicted of misdemeanor crimes could not be restrained from bearing fire arms. On several occasions they were caught for possessing guns illegally. As such, it can be surmised that tougher implementation of gun control laws are needed to reduce domestic violence by fire arms. Decided case laws and above discussions on domestic violence perpetrated by gun bearers, reveals that the abolishing of gun laws by the government will cause an increase in fatal cases of domestic violence. References Browning, A. (2010). Domestic violence and gun control: determining the proper interpretation of "physical force" in the implementation of the Lautenberg Amendment. Washington University Journal of Law & Policy, 33, 273 – 296. Constitutional Law — Second Amendment — En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc). (2011). Harvard Law Review, 124(4), 1074 – 1081. District of Columbia v Heller , 554 US 570 (Supreme Court of the United States June 26, 2008). Flores v Ashcroft, 02 – 3160 (United States Court of Appeals, Seventh Circuit November 26, 2003). Gun Control Act 1968. Gun Control Tougher Limits Might Reduce Domestic Violence. (1997, August 25). Daily Press [Newport News, Va], p. 1. Guns and domestic violence. (2008, November 16). The Blade [Toledo, Ohio], p. 1. Herman Presser v State of Illinois, 116 US 252 (Supreme Court of the United States January 4, 1886). Omnibus Consolidated Appropriations Act 1997. Otis McDonald et al v City of Chicago Illinois et al, 130 S Ct 3020 (Supreme Court of the United States June 28, 2010). Supreme Court Upholds Domestic Violence Gun Control. (2009, February 25). Retrieved February 8, 2013, from Newsmax: http://www.newsmax.com/Newsfront/court-gun-control-ruling/2009/02/25/id/328447 United States of America v Steven M Skoien, 08 – 3770 (United States Court of Appeals, Seventh Circuit November 18, 2009). United States v Belless, 02 – 30089 (United States Court of Appeals, Ninth Circuit August 11, 2003). United States v Cruikshank et al, 2 Otto 542 (Supreme Court of the United States March 27, 1876). United States v Emerson, 270 F 3d 203 (United States Court of Appeals, Fifth Circuit 2001). United States v Hayes, 129 S Ct 1079 (Supreme Court of the United States February 24, 2009). United States v Jack Miller et al, 307 US 174 (Supreme Court of the United States May 15, 1939). United States v William Maurice Smith, 171 F 3d 617 (United States Court of Appeals, Eighth Circuit March 24, 1999). Vernick , J. S., Rutkow , L., Webster , D. W., & Teret , S. P. (2011). Changing the Constitutional Landscape for Firearms: The US Supreme Court's Recent Second Amendment Decisions. American Journal of Public Health, 101(11), 2021 – 2026. Violent Crime Control and Law Enforcement Act 1994. (n.d.). Webster, D. W., Vernick, J. S., Vittes, K., McGinty, E. E., Teret, S. P., & Frattaroli, S. (2012, October). The Case for Gun Policy Reforms in America. Retrieved February 9, 2013, from Johns Hopkins Center for Gun Policy and Research: http://www.jhsph.edu/research/centers-and-institutes/johns-hopkins-center-for-gun-policy-and-research/publications/WhitePaper102512_CGPR.pdf What about children and guns? (2013). Retrieved February 5, 2013, from Second Amendment Foundation: http://www.saf.org/default.asp?p=gunrights_faq#32 Wilkinson, J., & Meisner, T. G. (2011, March). Domestic Violence and Firearms: A Deadly Combination. Retrieved February 9, 2013, from Strategies: http://www.vaw.umn.edu/documents/dvfirearmsdeadlycomvination/dvfirearmsdeadlycomvination.pdf Read More