Gun Control - the Controversy and the Way Forward - Research Paper Example

Gun Control: The Controversy and the Way Forward Details: al Affiliation: Gun Control: The Controversy and the Way Forward Like any other country the world over, America’s Constitution is but a people’s document and that any alteration, though a political undertaking, must reflect the will of “we the people,” the very beginning letters in that very document. A controversial proposal as it is, any new law that touches the Second Amendment in the 21st century America touches almost the heart of the American people, and thus, would, now or in the future, elicit a nerve wreaking debate that perhaps leaves both sides of the divide losers; for no one know for sure, most precisely those leaving in poor urban areas frequently associated with violent, young adult gangs, whether they are the next victims of the now commonplace gun violence. Guns have taken over and now wealds a romantic, if not a glorified reputation for masculine power separating the weak from the strong. Too many have lost their lives with quite a number languishing in prisons because a handgun made it easy to commit crimes they could never take back. Dubbed the most deadliest shooting rampage in the history of the United States, Seung-hui Cho, a 23-year-old seni­or student at Vir­gin­ia Tech, previously diagnosed with a severe anxiety disorder, engaged fellow students in a two-hour kind of horror movie on the 17 April, 2007 early morning, in the end taking life out of 32 fellow students, and leaving scores with gunshot wounds; fatalities and injuries which inevitably changed the course of life dreams of some of the survivors (Broder, 2007). Taking cue from the past massacres, a disturbed and isolated 20-year old young man named Adam Lanza on the 14th December, 2012 forced his way in­to Sandy Hook Ele­ment­ary School in New­town, Connecticut with an AR-15 assault rifle and proceeded to kill 20 first graders and 6 adults before taking his own life (Barron, 2012). These two incidents, more than any other in recent memory, brought to the public domain Americas deadly and debilitating fascination with firearms that is now a threat to the lives of every free American. At the core of the gun-aided carnage is but the very Second Amendment, which has reduced the public response to mere outrage for every "other similar tragedies, for the amendment virtually gives no room for stronger regulations. The latest of the many issues debated almost solely in terms of fixed preconceptions, gun-control controversy is discussed with a rare examination of hard facts to inform opinion. The extent to which Americans individuals’ rights to bear arms should burden the collective rights of a free nation forms the basis of this essay. For over four decades, guns, crime and the extent to which the Constitutional protects an individual’s rights to bear and use the former [guns] while deterring the latter [crime] haven’t known any descent compromise. Available research evidence indicates that the existence of a gun within a residential vicinity and/or the home, for that matter, is far more likely to result into extreme pain, either through suicide, murder, and/or fatal accidents than in preventing crime. More lethal are the concealed firearms which make it likely that a friend, a brother or otherwise a law abiding citizen will harm and/or kill his/her next-door neighbor[s]. Raising the constitutional bar for the first time in the nation’s history over gun legislations, the Supreme Court in Parker v. District of Columbia (2007) [later renamed District of Columbia v. Heller] went beyond affirming the individual’s right to bear arms, whitewashing with a stroke of the pen any gun control legislation that had ever been enacted and/or waiting for state legislative approval across the United States, and so effectively making such a violation of the Second Amendment (Liptak, 2007). Though defeated in the past, attempts at gun control legislations is not yet over, not because an outright ban is sensible per se, but because the original collectivist and the individualist intents of the Second Amendment both proves fundamental for antagonists on the divide, and thus giving a through-pass to the carnage to continue unabated. In the wordings of The Second Amendment, “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.” A divisive policy issue that has generated a debate with a rare magnitude, it is practically impossible to examine gun legislation in contemporary America without a sliver touch of the Second Amendment contours. Elusive with no express delineations of meaning, almost every single word, including the comma placements, in the above phrase has been subjected to some kind of interpretation on both ends of the debate. Evidently, there is “no definitive answer,” for arguments on both sides are reasonably balanced, supported by apt quotations from relevant framers of the United States constitution (Chemerinsky, 2004). Unsurprisingly, the Supreme Court has also sunk deep into the controversy, with the conservative judges supporting individual rights as more liberal judges drift towards collective rights interpretation, in the end delivering judgments that are pro-academic exploratory analysis than satisfactory to the pertinent questions on both ends (Tushnet, 2007). In his piece, Out of Range: Why the Constitution Can’t End the Battle over Guns, Mark Tushnet (2007) delineates three different interpretations of individual right to bear arms — the “pure”, the “citizen-related”, and the “citizen-militia.” The individual right to bear arms in the “pure” sense denotes a right equal to those enumerated in the Bill of Rights. It is this view that generates suspicion on regulations. The “citizen-militia” interpretation is maintained under the pretext of a tyrannical federal government, which without a doubt brings to question the relevance of the Second Amendment; for it is improbable that armed citizens would match the strength of the national government, literally. The third, the “citizen-related”, takes a middle ground, recognizing both protection against a tyrannical federal government and the right to self-preservation in the event of government failure to guarantee protection. The validity of a gun-control legislation, thus, depend on the interpretation applied; interpretation that is always non-unanimous to ward-off the seemingly escalating controversy, thus placing the gun control controversy beyond the constitution as it is in its current form. Historically, the justifications of the right to bear arms have in almost all occasions emphasized a common theme of defense: of the self, of other individuals, and that of the entire community (Winkler, 2007). Whatever the interpretation, therefore, it is clearly evident that the “defense” aspect of the Second Amendment—related to one’s self, one’s home, and of the family— bears a thin or no line at all between the two competing views, the collectivist and individualist rights perspectives. To be sure, the law has always recognized the right to one’s security, liberty, and private property. It is from these fundamental rights that necessitate the natural right of self-preservation via the right to bear arms just in case “the sanctions of society and/or laws are insufficient to restrain oppressive violence” (Blackstone, 1979). Wholesomely, it would be rather naïve to reject the argument that among other purposes, the Second Amendment recognizes an individual’s right to engage in armed self-defense against probable criminal conduct. It is obvious, therefore, that laws that purportedly infringe on the right to self-defense will most likely have to undergo the constitutionality test, hence the Heller setting a dark cloud precedence over gun control laws enacted [and to be] in the District of Columbia and beyond. The heightened, strict judicial review of the Second Amendment call into question the flexibility and latitude of the state legislatures and the national congress in making and adopting reasonable regulations of the rights under the bill of rights. For the record, no individual protection under the Bill of Rights has been subjected to such harsh judicial review in the history of the United States. Notwithstanding the courts affirmation of the second Amendment’s individual right to bear arms, the political process is and has always been recognized to provide constitutional safeguards against burdensome laws, and the Bill of Rights is no exception; a fact admitted by the Fifth Circuit in United States v. Emerson in the court’s adoption of a broad interpretation of the Second Amendment noting that: “Although . . . the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” In every sense of the words in the phrase, the court submitted itself to the interpretation of “standard reasonable restriction.” Albeit skeptical in language, with the requirement of “narrowly tailored” restrictions, the court gave room for a rational legislative action against the individual right to bear arms for persons subject to court orders as a prohibitive measure to the threat of violence against a child or intimate partner. Rejecting the defendant’s claim that the statute in question unconstitutionally infringed upon his right to bear arms stipulated in the Second Amendment, the court held that “the nexus between bearing a firearm and the threat of lawless violence” was sufficient to support the deprivation. Accordingly, an individual’s right to bear arms could be deprived well before the determination of an actual threat. One cannot agree more with Tushnet (2007) arguments, for the “reasonable regulation standard” set forth in Emersion seems to have drifted wide off in Heller, with the Supreme Court fixing automatically whatever gun control laws with a slight touch on the Second Amendment under unconstitutional restriction’s category [reasonable or otherwise]. Under a reasonable regulation standard, such laws would be considered invalid only to the extent that the legislature’s purpose for enacting the law overburdens an individual’s right to keep and bear arms for lawful purposes (Winkler, 2007). Through its wholesome invalidation of gun laws, the D.C. Circuit sidestepped an important determination of whether the District’s laws were reasonably enacted in light of public safety concerns or not. With reference to the separation of powers within the three arms of government, legislatures serve a fundamental role in service to the nation. As such, courts should give maximum deference to the legislatures to enact regulations in accordance with the local needs. In all the cases mentioned, it is critical to note that while total ban on firearms has been held unconstitutional consistently, little has been said of the legislative role in protecting the public welfare with regards to the subject discussed herein. Indeed taking into account the violent crimes in specific regions, it wouldn’t be impossible for most gun control laws to pass the requisite constitutional muster applied to other rights in the Bill of Rights. Freedom of speech protected under the First Amendment, for instance, though indisputably fundamental, is subject to reasonable time, place, and manner restrictions (Desmond, 2008). Accordingly, the Supreme Court in Hill v. Colorado (2000) upheld the state’s statute limiting speech around health care facilities. Applying a similar analogy in Lutz v. City of York (1990), the Third Circuit held that the constitutional right to intrastate travel guaranteed in the Fourteenth Amendment was, and indeed is, subject to reasonable time, place and manner restrictions. Observably, individuals’ rights protections under the Second Amendment should not be any different. It is common knowledge, even if not to all, that the presence of a gun, whether reasonable or otherwise, creates a “substantive evil” of being violent; for people who kill with guns were once good people holding guns legally (Desmond, 2008). Without a doubt, the right to bear arms “whenever, wherever and however one pleases” more than doubles the very “substantive evil” to violence just mentioned. As such, the only way to deal with problems arising from guns [homicide, crime, suicide, and/or accidents] is to legally prohibit/curtail their use with alternative safeguards. Just because the right to arms for self-defense is restricted in one way or the other, with purpose explained, does necessarily mean that the right has been unconstitutionally denied. Institutions of learning regardless of their level, for instance, are obligated to provide environments conducive to furthering the objective(s) at stake. To the extent that their [Universities, colleges, etc.] policies reflect educational judgment, they are entitled by law to create even more policies burdening individual rights, gun rights included. Although many have wondered, in fact offered probable solutions as to how the Virginia Tech tragedy could have been prevented, it is not known for sure what the scenario would have been had guns been allowed on campus. Noteworthy, however, it would be illogical to curtail gun rights without providing sufficient alternative safeguards. As pointed out in an opinion in Nordyke v. King (2003) by the Ninth Circuit Judge Ronald Gould, “[A]n individual Second Amendment right” is “subject to reasonable government regulation. Governments the world over are stakeholders in the affairs of the public, and thus have the obligation to guarantee the safety of its citizens. Legislation is but one of those options to do it. Like in other rights, states’ governments should have the right to create gun regulations, for individual rights that infringe on collective rights is no right, and the law does recognizing the value of taking them away should they be found to endanger/destabilize others’ enjoyment of the same and/or other rights. Laws do not exist in a vacuum; they are created. In every sense, the onus still falls on the state or national government to establish mechanisms of taking such rights away through the legislature. References Barron, J. (2012, December 14). Nation reels after gunman massacres 20 children at school in Connecticut. New York Times. Dec. 14, 2012. Retrieved from http://www.nytimes.com/2012/12/15/nyregion/shooting-reported-at-connecticut-elementary-school.html?pagewanted=all&_r=0 Blackstone, W. (1979). Commentaries on the laws of England: A facsimile of the first edition of 1765--1769. Chicago: University of Chicago Press. Broder, J. M. (2007, Apr. 17). Massacre in Virginia: 32 shot dead in Virginia; Worst U.S. Gun Rampage. New York Times. Retrieved from http://query.nytimes.com/gst/fullpage.html?res=9F01E1D7113FF934A25757C0A9619C8B63 Chemerinsky, E. (2004). Putting the gun control debate in social perspective. Fordham Law Review, 73, 477-485. Desmond, C. (2008). From cities to schoolyards: The implications of an individual right to bear arms on the constitutionality of Gun-Free Zones. McGeorge Law Review 39, 1043-1072. Liptak, A. (2007, May 7). A Liberal case for the individual right to own guns helps sway the Federal Judiciary, New York Times. Retrieved from http://www.nytimes.com/2007/05/06/us/06firearms.html?pagewanted=all Tushnet, M. V. (2007). Out of range: Why the constitution cant end the battle over guns. New York: Oxford University Press. Winkler, A. (2007). Scrutinizing the Second Amendment. Michigan Law Review, 105, 683-733. Court cases City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810.11 (1984). Retrieved from LexisNexis Academic database.  District of Columbia v. Heller, 128 S. Ct. 2783 (2008). Retrieved from LexisNexis Academic database.  Hill v. Colorado, 530 U.S. 703, 707.08 (2000). Retrieved from LexisNexis Academic database.  Lutz v. City of York, 899 F.2d 255, 269 (3d Cir. 1990). Retrieved from LexisNexis Academic database.  Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003). Retrieved from LexisNexis Academic database.  Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). Retrieved from LexisNexis Academic database.  United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001). Retrieved from LexisNexis Academic database.  Read More