The Second Amendment - Research Paper Example

Second Amendment Second Amendment: its coverage and limit The Second Amendment contained in the Bill of Rights of the Constitution of the United States declared 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” (U.S. Const. amend. II). The wording of this provision in the Second Amendment is not self-evident and being such, it has given much commentaries and interpretation due to relatively few Supreme Court decisions that should have elucidated on this constitutional provision. For example, recent calls to control and even ban gun use as a response to increasing violence and murder in schools that involve guns such as the the recent shooting in Sandy Hook Elementary School in Newtown inadvertently run counter to the basic Bill of Right of the Second Amendment. This is not the first however that this Amendment had been challenged and in fact, there were several court decisions made in the past that undermined this provision due to its unclear coverage and extent. For example, we can cite the U.S. v. Cruikshank (1876) case whereby it was often cited out of context with the claim otherwise that Second Amendment is "is not a right granted by the Constitution" (Guncite.com, 2010). This out of context interpretation also resulted in other flawed state regulation such as a provision in the Firearms Control Regulations Act of 1975 law in the District of Columbia that requires all firearms including rifles and shotguns to be kept "unloaded and disassembled or bound by a trigger lock. The Firearms Control Regulations Act of 1975 also contained a provision that prohibits the residents of the District of Columbia from owning handguns except those that were registered prior to 1975. As expected, the law was challenged and was elevated in the Supreme Court. Until finally on June 26, 2008 the Supreme Court made a decision to affirm the Court of Appeals for the D.C. Circuit in Heller v. District of Columbia. The Court of Appeals had initially made a decision to remove two provisions in the Firearms Control Regulations Act of 1975 as unconstitutional. The provisions that were removed as unconstitutional were the provision that prohibits the residence of District of Columbia from the ownership of handguns except prior 1975 and the provision that requires all firearms to be "unloaded and disassembled or bound by a trigger lock" at all times. The decision elaborated that the Second Amendment “protects an individual right to bear arms” further stating its decision was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government” (Library of Congress). Further, this right help preserve a citizen militia “the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." (Guncite.com). With regard to handgun ownership, the Supreme Court thus decided that the District of Columbia cannot prohibit its citizen from owning such as guaranteed by the right enunciated in the Second Amendment albeit subjected to restrictions. The specific provision of Firearms Control Regulations Act of 1975 that specified that all firearms including rifles and shotguns be "unloaded and disassembled or bound by a trigger lock" was also struck down as unconstitutional. Although the District asserted that there are exceptions to this provision, it still meant to a total prohibition on functional firearms that would be used for self defense. The court further exegete; Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional. Further, in the original U.S. v. Cruikshank in 1876 case which is often misinterpreted as a court interpretation that do not protect an individual to keep and bear arms, the misinterpretation stems from the fact that the Court considered this right to exist even before the formation of the Constitution and therefore not granted by the Constitution. Furthermore, the case also involves the questioning of the First Amendment which the Court also acknowledged to be pre-existing even before the Constitution was created. It is therefore proper to put in perspective that a statute cannot grant what already existed. It can merely acknowledge the existence of such as in the case of the people’s right to keep and bear arms and to peaceful assembly and redress as contended in the U.S. v. Cruikshank case in 1876 (Guncite.com). All of these challenges to the Second Amendment manifests that bearing an arm is a right guaranteed by the Constitution that no state laws can be passed (albeit it has been tried but later struck as unconstitutional) to abridge this right. But still, the coverage of the Second Amendment needs further elaboration including the philosophical framework of which it operates. One clear coverage of the Second Amendment of which the court has already clarified is that gun ownership as viewed by the state under the guidance of the Second Amendment furthered the conclusion that all citizens capable of bearing arms or the gun owners, constitute a reserve military force of the United States as internal security measure against external threat. This was explicitly stated in the Presser v. People case of Illinois in 1886 whereby the court opined in dicta for the purpose of precedent that; It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government (Guncite.com). The Second Amendment or the right to bear arms however is not absolute. The Court has set limitation to it to avoid abuse in the exercise of our right to bear and carry arms is expressed in the Lewis v. U.S. in 1980 whereby a convicted felon is prohibited to possess a firearm (Guncite.com). This is reiterated further in the Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 whereby the petitioner Lewis was convicted in 1961. Later in 1977 Lewis was charged for possession of firearm in violation of such law. Lewis argued in his defense that the basis for such firearm disability or disallowing him to carry arms was based on a conviction that violated other provision in the Bill of Rights which is the Fourth and Fifth Amendment which guarantees him due process and to seek redress. He argued that it is not just that a firearm disability will be imposed on him since his conviction was out of the deprivation of the right to counsel and redress which is guaranteed in the Fourth and Fifth Amendment. The Court however uphold the decision saying that the basis of depriving Lewis possession of firearm still stands because the remedies to counsel and redress are available to him prior to his conviction in an appropriate court proceeding, yet he did not avail. Also, the Court is empowered to deprive him of such right to possess a gun even if the conviction is allegedly flawed because the law intended for him to clear his status before again obtaining a firearm. This sets a security measure in the use of gun from those who would potentially abuse this right (Guncite.com, 2010). This clearly delineates the extent of the Second Amendment that guns should be put away from persons who are potentially irresponsible and dangerous such as convicted felons. The Courts also provided safety net against the abuse in the exercise of the right to own and bear gun as stated in the Second Amendment of the Bill of Rights of the Constitution. This was explained in the case of Presser v. People of Illinois in 1886, Herman Presser was convicted of parading a group of men without the proper authorization from the authorities in the state of Illinois. Presser in his defense used the Second Amendment and argued that the State violated the provision in Second Amendment of his right to bear arms. The Court however clarified that the state has the power to control and regulate military bodies including its activity of parade. This is important to cite because this case stated the extent of coverage or limit in the exercise of the Second Amendment. In simple terms, this meant that we just cannot parade firearms and utter our right in the Second Amendment. Philosophical viewpoint of the Second Amendment and how it should be interpreted Second Amendment was not included in the United States Constitution out of whim but rather as a product of their vision and prevailing circumstance during that time. The self-defense nature of the Second Amendment was borne out of the influences of classical liberal thinking among the Founders of the United States that citizens must be prepared to defend their society against any criminal usurpation or tyrannical ministers or the pillaging of any entity (Weighley 45). We have to note here that Founders of the US Constitution did not put the stewardship of society solely to government and its police powers but also to its citizenry to effectively guard and defend society. We have to note also that the US Constitution was drafted against the backdrop of Britain’s occupation the Second Amendment serves as a “protection” or a guarantee of a standing army should any invasion becomes imminent again. It is equally important to note that the Founding Fathers of United States were students of classical philosophers who thought that self-defense is the primary law of nature and the very reasons why men formed and entered into societies (Hobbes ch. XIII). Montesquieu also seconded this law of nature to self-defense as expressed in the right of man to bear arms as a moral duty of self defense and that this right must not be infringed (Montesquieu 224-25). One of these philosophers who had the profound impact on US Constitution that even its Declaration of Independence is built on its philosophy is John Locke who put forth the idea of Social Contract Theory that it is the right of the citizens to resist tyrannical government and its officials and if necessary, even to bear arms and revolt against a tyrannical government (Locke). This is expressed in the Second Amendment whose spirit and intent was to empower the citizens to defend themselves against abuse and usurpation from any agencies be it domestic or foreign. Works Cited Guncite.com (2010). Supreme Court Cases. Retrieved from http://www.guncite.com/gc2ndsup.html Library of Congress (2012). United States: Gun Ownership and the Supreme Court. Retrieved from http://www.loc.gov/law/help/second-amendment.php Locke, John. “Second Treatise of the Government”. 1689. Online. May 05, 2013. [http://constitution.org/jl/2ndtr05.htm] Montesquieu, Spirit of the Laws at 224-25 (cited in note 11). Thomas Hobbes, Leviathan ch. XIII (1651, rep. George Routledge & Sons, 1894). U.S. Const. (1791). Amendment II. Read More