The 2nd Constitutional Amendment - the Right to Bear Arms - Research Paper Example

 The 2nd Constitutional Amendment – The Right to Bear Arms 1. What was the historical background of the time frame in which the Constitution/bill of rights was written? What was happening? The Bill of Rights provides the fundamental liberties and freedoms to the citizens of the US. George Mason had authored the Virginia Declaration of Rights, in the year 1776, which constitutes the first bill of rights in the US. The subsequent bills of rights were based on the Virginia Declaration; which was considered to be the standard for US bills of rights (Bill of Rights, 2004). In the colonial period, the British had deprived the residents of America of civil rights and fundamental rights. Thereafter, a newly independent nation, which was named the United States of America, came into existence. Its first president was George Washington. The draft constitution for this fledgling state had included a modicum of fundamental rights, which was then forwarded to the States of the Union for ratification (The Bill of Rights, 2009). Several eminent leaders and public figures condemned the draft constitution in no uncertain terms, for having failed singularly, to include individual liberties. Many Statesmen opposed this draft constitution, including the drafter of the Virginia Bill of Rights, George Mason; and Elbridge Gerry of Massachusetts. In addition, Thomas Jefferson, the then US Minister to France, expressed his concern regarding this serious lapse, in the draft constitution, to James Madison, the father of the Constitution. He impressed upon Madison that the bill of rights should provide rights, such as freedom of religion, freedom of the press, protection against standing armies, and restriction against monopolies (The Bill of Rights, 2009). This dismal state of affairs was noticed by George Washington, who recommended to the US Congress to make amendments to the US Constitution, so that the rights of the citizens and regard for public harmony would be promoted. In response to the growing demand for the inception of basic rights into the Constitution, the Congress submitted several Amendments to the Constitution, in order to provide essential fundamental rights to the people of the United States of America. On 25 September 1789, Congress officially proposed these proposals, which were twelve in number. Of these the first two were rescinded, and the remaining ten were adopted. These ten amendments to the US Constitution constitute the Bill of Rights (The Bill of Rights, 2009). The rights bestowed upon a person, on account of that person being a member of society, are termed as Civil rights. These rights are conferred on a person by the Constitution. The Bill of Rights, provide a number of rights to individuals, including the right to freedom of religion and expression; the right to bear arms; and the right against self – incrimination. The Civil War was chiefly instrumental in the development of these rights. Subsequent to the Civil War, Radical Republicans in the Congress took great pains to protect and promote the civil liberties of African Americans. Their efforts culminated in the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution (Civil Rights, 2002). 2) Which amendment did you choose? Amendment II In the Bill of Rights, the second amendment to the Constitution 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." (Constitution of the United States of America, 2004). 3) What were the framers of the constitution trying to accomplish or avoid with this amendment. The advocates of gun control have contended that civilians should not bear arms and that there was no constitutional sanction, in this regard. They further state that the term people, employed in this Amendment, connote the State National Guard Units and not civilians. James Madison had proposed the Second Amendment to the Constitution. He was one of the authors of the Federalist Papers (Agresti, 2008). These papers were published in the newspapers, so as to provide information regarding the Constitution. In the Federalist Paper 46, Madison contended that a standing Federal Army, lacked the wherewithal to seize control of the nation. It was his considered opinion that the federal standing army should not exceed 30,000 soldiers, in strength (Agresti, 2008). This assessment was based on the population, at that point of time. In Parker v. District of Columbia, the court of appeals held that as a District is also a Federal District, it falls under the purview of Congress. As a consequence, it is constrained by the entire Bill of Rights. This interpretation suggested that the Districts were the only areas, in the country, wherein guns could not be regulated (Parker v. District of Columbia , 2007). This preposterous interpretation of the Constitution, was on account of a lapse, while drafting the Constitution, and not intentional. The principal objective of the Second Amendment was to prevent Congress from disarming the state militias. Moreover, Districts were established by the federal Constitution, and as a consequence, do not possess any residual sovereignty that necessitates protection from Federal intrusion (Egleson, 2008). It is the State that is bestowed with residual sovereignty; thus, the Second Amendment is inapplicable to the Districts. President George W. Bush had stated at the National Governor’s Association Conference that the drafters of the US Constitution were of the opinion that power was to be dispersed, if national freedom was to be preserved (Lee, 2002). Accordingly, they had curtailed and specified the powers of the Federal Government, whilst allocating the residual powers and sovereignty to the State governments. The security of a free state depends on the presence of well regulated militia. Nevertheless, legal commentators find it difficult to arrive at a consensus regarding the specific rights, promoted by the Second Amendment. A few of these legal luminaries had contended the Second Amendment guarantees the individuals’ right to possess firearms. However, there are other scholars, who hold that this Amendment empowers the members of a militia to own firearms (Second Amendment). 4. Is this amendment still needed today? Is it being abused in any way? The Second Amendment is inappropriate in the present situation, as it was intended to serve the nation by means of a well regulated Militia, during the days of the revolution. This right had been abused by the people. Several incidents of shootings in schools and colleges reveal this terrible truth. As per the decisions of the Supreme Court, the right to bear fire arms is not a fundamental right intended for self defense. Without proper controls, freedom to bear firearms does not prove to be beneficial to society. Many incidents of gun violence in the United States have demonstrated the truth of this contention. Therefore, this Amendment is not required in the present day context. In U.S. v. Miller, the Supreme held that the intention of the Second Amendment is to serve the Federal Government with a well organized militia. It was not the intention to permit citizens to bear arms as a means of self defense (U.S. v. Miller , 1939). The Second Amendment does not preclude effective gun regulation. The laws that deal with gun rights are based on this Amendment. Legislation relating to gun control emerged in the 19th Century, as a result of the laws enacted by the different states, to address the problems posed by handgun. However, the early supporters had viewed the Second Amendment as an obligation on the citizens to contribute their mite to public defense. The proponents of gun control are of the opinion that the Second Amendment is not relevant to the modern age (Cornell, 2009). Modern gun control supporters view the Second Amendment as an obsolete concept that encourages the use of hand guns by ordinary civilians. In the present day context, the security of the nation, being the prime objective of the Federal Government, there is no necessity for the citizens to bear fire arms. 5 Would you change this amendment and if so how? I want to change this amendment as follows; A well regulated Militia was intended to promote the security of the nation, during the days of the Revolution. This does not apply to the present day US, which has adequate safeguards and security measures, for ensuring national security. Moreover, the security of the nation being the principal objective of the Federal Government, the right to bear fire arms is an unnecessary right; and consequently, is to be rescinded. List of References Agresti, J. D. (2008, June 27). Gun Control Facts. Retrieved November 14, 2009, from Just Facts: http://www.justfacts.com/guncontrol.asp Bill of Rights. (2004). Retrieved November 12, 2009, from In The Great American History Fact-Finder: http://www.credoreference.com/entry/hmgahff/bill_of_rights Civil Rights. (2002). Retrieved November 12, 2009, from In World of Criminal Justice, Gale: http://www.credoreference.com/entry/worldcrims/civil_rights Constitution of the United States of America. (2004). Retrieved November 12, 2009, from In The Great American History Fact-Finder: http://www.credoreference.com/entry/hmgahff/constitution_of_the_united_states_of_america Cornell, S. (2009). The Second Amendment Is Misused by Opponents of Gun Control. Retrieved Novembrer 14, 2009, from Cornell, Saul. "The Second Amendment Is Misused by Opponents of Gun Control." Current Controversies: Guns and Violence. Ed. Debra A. Miller Opposing Viewpoints Resource Center. Gale. Career Education Corp: http://find.galegroup.com/ovrc/infomark.do?&contentSet=GSRC&type=retrieve&tabID=T010&prodId=OVRC&docId=EJ3010049280&source=gale&srcprod=OVRC&userGroupName=cec&version=1.0 Egleson, C. M. (2008, March 3). Text, Purpose, and the Second Amendment. Retrieved November 14, 2009, from Harvard Law and Policy Review: http://www.hlpronline.com/Egleson_HLPR.pdf Lee, R. W. (2002). Gunning for the 2nd amendment: President Bush's proposal to fight gun-related crime through Project Safe Neighborhoods undermines our federal structure and threatens our God-given right to self-defense. The New American , 18 (16), 31. Parker v. District of Columbia , 478 F.3d 370, 391 n.13 (D. C. Circuit 2007). Second Amendment. (n.d.). Retrieved November 14, 2009, from http://74.125.153.132/search?q=cache:tdN6OgZlpmIJ:ca.encarta.msn.com/encyclopedia_761553383/bill_of_rights.html+2nd+amendment+encarta&cd=1&hl=en&ct=clnk The Bill of Rights. (2009). Retrieved November 12, 2009, from http://www.earlyamerica.com/earlyamerica/freedom/bill/ U.S. v. Miller , 307 U.S. 174 (Supreme Court of the United States May 15, 1939). Read More