Gun Control and Second Amendment of the United States Constitution - Research Paper Example

Introduction The debate on gun control and the Second Amendment has been active for close to half a century now. Lawyers, smen and women and thepublic all agree that of all the issues regarding the United States constitution, the preamble of the Second Amendment has had the most disagreement and probably the least understanding. The National Rifle Association has grown to be the most influential lobby group in the United States today because of its vehement opposition to gun control. This paper will not pretend to provide the ultimate solution to this profound issue. Instead, the paper shall give a brief history of the origins of this debate then it shall look at the extremely confusing word use on the preamble in the Second Amendment where it will highlight the strong argument points for both sides: pro-gun control and anti-gun control. However, this does not mean that the paper has taken a neutral stance because after all fact have been laid bare the main purpose of this paper is to explain why having guns in the hand of the civilian population, as good intentioned as it may be, provides a real source of danger especially to the American adolescent population at home and at school. History of the gun control debate The debate on whether or not Americans should privately own guns and the Second Amendment goes back several years though we could argue that it gained heat after the assassination of President J. F. Kennedy in 1963. After evidence from the assassination of President JFK the public became aware of the relative uncontrolled state of sale and possession of firearms in the United States. Below we provide a brief outline of possible key dates in this debate. In 1791, the United States Bill of Rights is ratified. Within the Bill of Rights we find the Second Amendment. In 1871, the National Rifle Association (NRA) is established in New York. The NRA remains as the strongest lobby group in the United States as it actively promotes the right for Americans to own firearms privately. It was founded as the American Rifle Association with the purpose of improving civilian marksmanship in preparation for war. In 1968, the Gun Control Act is enacted. This Act is used to regulate the sale of handguns, gun-dealer licensing and gun-importation. Indeed, before1968, guns were sold to any adult regardless of mental capacity or criminal record. In 1972, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is established. The ATF’s mission was to enforce the Federal firearms laws, to control the sale of firearms and to prevent illegal use of firearms. Today its mandate has expanded to include protecting American communities from arson, bombings and acts of terrorism (ATF, n.d.). In 1994, the Brady Handgun Violence Prevention Act (Public Law 103-159) was enacted. This Act imposed a five-day waiting period on the purchase of a handgun while local law enforcement agencies conduct background checks on the buyers. In 1997, the Supreme Court declared the background check requirement of the Brady Handgun Violence Prevention Act unconstitutional in the case of Printz vs. United States. In 1998, permanent provisions of the Brady Act go into effect. Gun dealers were obligated to perform a pre-sale criminal background check on all firearm buyers through the newly created National Instant Criminal Background Check (NICS) computer system (Guncite, n.d.). In 1999, the Senate passes a bill requiring trigger locks on all newly manufactured handguns and lengthens the waiting period and background check requirements to sales of firearms at gun shows. In 1999, the Los Angeles County, California Board of Supervisors bans the worlds largest gun show from the Pomona, California fairgrounds where it had been held for the last 30 years. The Second Amendment The Second Amendment to the U.S. Constitution, first clause’s preamble reads: "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." Of all the issues regarding the US constitution, this preamble has had the most disagreement and probably the least understanding. The greatest disagreements lie with the interpretation of three phrases: a well regulated militia, the people and bear arms. According to anti-gun control lobbyists the words ‘well regulated’ in the preamble of Second Amendment dont refer to government regulation. This is probably the least contentious of the three debate-ridden phrases of the Second Amendment because Hamilton (1788) wrote that a “well-regulated militia being the most natural defense of a free country ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security [which in this case is the Federal government]…” Another disagreement stems from the understanding of who comprises the militia. Anti-gun control lobbyists take about the inclusion of every adult American citizen within the definition of modern day militia which by extension gives them the right to own arms privately. However, pro-gun control lobbyists cite U.S. v. Miller (1939) where the Supreme Court described the Militia as “comprising of all males physically capable of acting in concert for the common defense” which manifests that militia refers specifically to those who have been given authority by the federal government (Guncite, n.d.).. The term ‘the people’ has been used selectively in the US Constitution. In amendment 1: “Congress shall make no law ... abridging ... the right of the people peaceably to assemble.” U.S. Constitution article 1 and 2, clause 1: “The House of Representatives shall be composed of Members chosen every second year by the People of the several States”. These cited sections of the US Constitution seem to favour the anti-gun control faction that the use of ‘people’ implies the individual therefore the Second Amendment’s “…right of the people to keep and bear Arms…”refers to the individuals’ right to own firearms (Guncite, n.d.). Halbrook (1991) supports this view when he suggests that the Bill of Rights was developed to check the government from infringing individual rights and liberties presumed to be pre-existing. Therefore the preamble in the Second Amendment should be recognized as a personal right. On the contrary, pro-gun control lobbyists cite the preamble of the Constitution that states “We the People of the United States....do ordain and establish this Constitution for the United States of America.” Here it is clear that the term ‘people’ refers to the collective. This also applies in the core rights retained and reserved to the people in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically (Guncite, n.d.).. The interpretation of ‘the people’ seems to be the strongest argument point for the anti-gun control crusaders. At the time of the founding, the phrase bear arms was most commonly used in a military setting, and even today it carries a military connotation (Guncite, n.d.). In all the recorded debates of the First Congress about the Second Amendment bear arms is used to refer to military activity. Elbridge Gerry of Massachusetts and Thomas Scott of Pennsylvania, for example, voiced their concerns over clauses in earlier drafts of the Second Amendment. They believed that the exemption of certain factions of people from militia duty could turn out to be a serious threat to their right to keep and bear arms. It is difficult to see how such an exemption could threaten this right if the right is concerned with nonmilitary activities and has no necessary connection with a well regulated militia. We must remember that the Founders had recently fought a war with the British when they wrote the Second Amendment. They knew the significance of having a country that was prepared militarily in case of another war. This is probably why they included the words "well regulated" in the Second Amendment. They knew that you had to have an organised system for arming and training the people and that simply expecting them to do it on their own would not have been practical (The Second Amendment, n.d.). The modern day individual rights interpretation by anti-gun control lobbyists therefore does not hold water with regard to the phrase on who is to bear arms. The preamble of the Second Amendment cannot be understood in phrases. It needs to be read and meaning derived from it from the context of a whole document. When we do this, pro-gun control activists believe that the Second Amendment preamble would be clearly comprehended to be about the right of the people to bear arms within the context of an organized militia and not out of it. The dilemma in the gun control debate From the figure below you could make all sorts of statistical inferences to suggest more guns less crime or vice versa. Depending on where you begin your analysis start year and how you set your time frame, you could find substantial evidence for either pro-gun control or anti-gun control (The Gun Supply Myth, n.d.). The truth however is that the data does not tell us much about either sides of the debate. And it is my belief that other data about gun supply, homicides and suicide trends would be just as inadequate as this in helping us reach a satisfactory conclusion about this dilemma. Figure 1: Sources: Data points, through 1994, Gary Kleck, Targeting Guns: Firearms and Their Control, Walter de Gruyter, Inc., New York 1997 (pp. 96-7), and FBI Uniform Crime Reports (handgun homicide rates became available in 1966). If we cannot make any inferences from the above chart then what can we attribute as the cause for the decreasing trend in crime between 1991 and 2003 (and the declining trend has continued as depicted in more recent data)? Criminologists, law enforcement officials and legal analysts have been unable to reach a consensus though possible explanations include: a booming economy and declining unemployment, aging criminal population, introduction of community-based policing, tougher sentencing, cyclical trends in the homicide rate and a more effective police force. The purpose of this essay is not about attributing success to either side of the gun control debate but to highlight the real problem of allowing guns to permeate the society, which is what we refer to as the nature of the gun problem. The nature of the gun problem Gun-related crime today may not be as high as it was between the late 1980s and early 1990s. The US has made steady inroads in bringing down the volume of gun-related violence. However, gun violence remains a serious national problem more so among juveniles and adolescents in America (Promising Strategies to Reduce Gun Violence, n.d.). Our concern with guns is that the firearm homicide rate for children under 15 years of age is 16 times higher in the United States than in 25 other industrialized countries combined. The fact that a teenager in the US is more likely to die of a gunshot wound than from all the natural causes of death combined does not fill our country with hope. Firearm homicides have been the leading cause of death for African American males of between ages 15 and 19 years since 1969 (Promising Strategies to Reduce Gun Violence, n.d.). The second major issue is that guns are increasingly being acquired illegitimately through robberies and burglaries. The more private gun owners there are the greater the number of firearms that are likely to get into the hands of wrong people through this way. In 1994 nearly 600,000 guns were stolen during such burglaries (Promising Strategies to Reduce Gun Violence, n.d.). Firearms acquired this way are then used to supply the illegal gun market, where the target market is often drug sellers and gang members who are mostly young and male. The third major concern is that gun violence has increased in schools. Parents today no longer feel assured about the safety of their children at schools. Though one might argue that multiple shootings in schools are rare the mere probability of them occurring should not be there. A leading survey revealed that between 1994 and 1996, the percentage of 12th grade males that reported carrying a gun to school in the previous 4 weeks was roughly 1 in 17 pupils. Conclusion While we continue debating about the civil liberties and whether the Second Amendment gives American citizen the right to own handguns or not we should save some of the effort, time and money to strengthen the structures that have enabled the overall crime rate in the US to decline. We need to focus more on mitigating criminal activity and instituting aggressive intervention programs to reduce crime. For example, Cook and Ludwig (1997) inform us that the bulk of the people behind gun violence are from repeat offenders who should not be in possession of firearms. A stricter enforcement of the Brady Handgun Violence Prevention Act and other legislation, community policing, reduction of unemployment are just a few of the possible tactics that we could employ to tackle the issue of violent crimes. References ATF. (n.d.). ATF’s mission. Retrieved on July 8, 2010 from http://www.atf.gov/about/mission/ Cook, P. J & Ludwig, J. (1997). Guns in America: Results of a Comprehensive National Survey on Firearms Ownership and Use, Summary Report, Washington, DC: Police Foundation. The Gun Supply Myth. (n.d.). Retrieved on July 8, 2010 from http://www.guncite.com/gun_control_gcgvsupp.html Halbrook, S. P. (1991). The right of the people or the power of the state: bearing arms, arming militias, and the second amendment. Valparaiso University Law Review, 26, 131-207. Hamilton, A. (1788). Concerning the militia. Federalist No. 29. Retrieved on July 8, 2010 from http://thomas.loc.gov/home/histdox/fed_29.html Promising Strategies to Reduce Gun Violence. (n.d.). OJJDP Report. Retrieved on July 8, 2010 from http://ojjdp.ncjrs.gov/pubs/gun_violence/sect01.html The Second Amendment (n.d.). Retrieved on July 8, 2010 from http://www.guninformation.org/secondamendment.html U.S. v. Miller, 307 U.S. 174 (1939) Read More