The Second Amendment of the US Constitution - Case Study Example

2nd Amendment to the U.S. Constitution The first interpretation of the Second Amendment of the US constitution by the Supreme Court was done on June 26, 2008. This was in a case involving the state of Columbia vs. Heller (2008). In its ruling the court stated that the Second Amendment of the US constitution n regards to traditional reasons that include self defence, grants an individual the right to possess a firearm. It further ruled that two of Columbia districts provisions that banned firearms and required disassembling of fire arms at home had violated the right granted by the Second Amendment (Acosta ). The original intent of the amendment The right to possess firearms is part of was proposed by the congress as a way of limiting misuse of power by the congress in 1789. In the proposal it was agreed that further restrictive clauses and declarations that will improve the people’s confidence in the government be implemented. These amendment were later ratified in 1791 to form what is known as the bill of rights (The Charters of Freedom). According to the founding fathers, the original intent of the Second Amendment was simply to keep power in the hands of the people. It was to ensure that every person was in a position to join others in fighting tyrants, unjustified forces and invaders. It meant that the government had no power to limit gun possession by the people. During the writing of the constitution, a few backlashes from those who wanted some major restrictions on the government arose. These included explicit protection of freedoms such as freedom of religion, freedom of speech, freedom of press, and that against searches and arrests without warrants. Above all these is the right to possess firearms (capitalist Institute). The request to keep possession of fire arms was nearly universal and cannot be confused as it was clear in every quota. The convention at New Hampshire proposed that the phrase “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” This request was backed up by an almost similar request from anti-federalists who proposed “That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals…” should be agreed upon. Other proposals from three different states that included New York, Rhode Island, and Virginia, each included “That the people have a right to keep and bear arms”. Thus the desire by founding fathers to protect the right to keep firearms had obvious intentions. They had no trust on their government’s armies and were convinced that the militia was the nation’s strongest defence. The country they so desired to see was that in which the people had the power. Their belief was that the right to bear and keep firearms had great importance, arguing that the people’s right to repel inversion and overthrow tyranny was fundamental. In the Pennsylvania gazette in 1788, Richard Lee stated that “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.” Patrick Henry also quoted that “The great object is that every man be armed.” These are just a few among many (Capitalism Institute). Threats to the Second Amendment The Second Amendment faces threats that come in numerous forms that include political, economical, social and cultural. Political threats include states and district bans and restriction to possession of firearms by the citizens. With the courts as the battle field, this has drawn sharp arguments with each side strongly defending its lines. The right to bear firearms 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." This has sparked debates in recent times. On one side under the “individual right theory” some are of the conviction that the phrase "the right of the people to keep and bear Arms" gives individual citizens the right of firearm ownership. Under the theory the constitution legislative bodies are restricted from prohibiting firearm possession as it renders the prohibition unconstitutional. On the other side scholars have brought to attention the prefatory language "a well regulated Militia". In their argument they claim that the Framers intention was to restrict the congress from taking away the states right of self-defence. This is known as the “collective rights theory”, this affirms that individuals do not enjoy the right to possess firearms giving the state, local authority, states and federal legislative bodies have the power to control ownership of firearms (Cornell University Law School). The Supreme Court in 1939 was called upon to interpret the Second Amendment, where the court adopted a collective rights approach in a case involving the United States vs. Miller 307 U.S. 174 (1939) (Legal information institute). The court ruled that congress had the power to regulate a sawed-off shotgun that went around states under the national firearms act of 1934. It cited that the then present evidence did not give any suggestion that "has some reasonable relationship to the preservation or efficiency of a well regulated militia." The court went further to say that the Framers inclusion of the Second Amendment was for the effectiveness of the militia (Cornell University Law School). The Supreme Court had to revisit this precedence that stood for nearly 70 years in 2008 in the case involving the District of Columbia vs. Heller (2008). With Heller as the plaintiff, the constitutionality of the district of Colombia on ban imposed on handguns against a statute that had been in existence for 32 years. This statute was considered by many as the stringent most in the country. In a meticulous manner, the court established the history of the 2nd amendment and its tradition during the constitutional convention. In a 5-4 decision, the court passed that the Second Amendment gave individual right to citizens to possess firearms. It further declared the ban by state of Columbia on handguns as unconstitutional and a violation to such rights. Majority of the bench stated Miller as a case where the general rule of firearm possession by American as an exception. They pointed out that sawed-off shotguns cannot be used by law abiding citizens for purchases that are in line with the law. The court further went ahead to state that other regulations on similar weapons cannot be used to back up restrictions on the Second Amendment against law abiding purchases. The court cleared out that it would not go against prohibition of criminals and mentally ill persons from possessing firearms (Cornell University Law School). The Heller case left a number of questions without answers, especial it did not make it clear whether the Second Amendment had an effect on the firearm laws of states and local governments, or it was just limited to federal government. Two years later on 28 June 2010, the Supreme Court was faced with a similar case in McDonald v City of Chicago (2010). The court made a similar ruling as in Heller’s, this time establishing the Second Amendments also applied to laws enacted by local governments. Otis McDonald among others from Chicago and Illinois were the plaintiffs wishing to keep possession of their guns but faced ban by the states of Chicago and Illinois, with Chicago imposing the ban since 1992. The lower courts; district court and the court of appeal upheld the law citing the case involving Cruikshank and Presser. The decision by the smaller courts was reversed by the Supreme Court in a majority of 5-4 similar to that of Heller. Justice Samuel Alito in his writing for the majority begun by stating that the Cruikshank and Presser decisions were made before the Supreme Court had ever adopted the more modern “selective incorporation approach”. In his writing, Alito determined the incorporation of the Second Amendment via the 14th amendment to limit state power in due process clause (Am). According to Alito, the court’s revisit of the history of the 2nd amendment in the Heller case, clearly proved that the self defence right using shotguns in homes is deeply rooted in history and tradition and it must be incorporated based on this. He also stated that the evidences historically before and immediately after the 14th amendment proved the right to keep firearms as a fundamental. Chicago and Oak Park Argued that the Second Amendment should be treated separate as it differs from other amendments of bill of rights because it involves possession of deadly weapons that would endanger the public. This argument was rejected by Alito stating that the Second Amendment does not exist as the only constitutional right that has controversies involving public safety (Am). One of the major social threats to right to own firearms is the fear of crime. Whenever this arises people quickly think of blood in the streets. Some believe that allowing untrained and unskilled persons are to carry fire arms is a threat to the public as it could lead to death and injury both intentionally and unintentionally. It is also claimed that it makes it more difficult for law enforcers to identify the actual criminals especially during shootouts (Bradley campaign to Prevent Gun Violence). In 2012, 6,371 people died through handgun homicides while 4,603 suicide cases arose from handguns. To add to this is that 91 people died from unintentional handgun shots a figure that is ten higher than the previous year (gunpolicy.org). In 2010 out of 16, 259 homicide deaths 11,078 were gun related. This brings an average of 3.6 deaths by gun for every 10,000 people (Centre for disease control and prevention). Statistically there exists a likeliness of up to 12 times death occurrence from firearm violence by family members or acquaintances. People who come from homes where firearms exist have a 5 times more risk of suicide than those from homes without firearms (Davis). Firearm related deaths do have a huge impact on the economy; nearly $4.5 billion is used to cover the medical costs such as operations, rehabilitations (physical and occupational therapy), hospital care in both long and short terns. A good percentage of funding comes from uninsured sources meaning tax payers cover the bill at the end of the day. In terms of lost wages and earning potential wasted dues to deaths, temporary or permanent disability the country loses what is projected to be more than $20 billion annually. Given that most of the victims are either in their teenage or twenties this amounts to over 40 years of lost wages. The social and emotional lose heaped on the victims and their families cannot be estimated in dollars as it is too huge. These loses trigger the desire for legislations that can control firearm ownership (Davis). Opposing arguments The most important argument is that gun ownership is the reason behind violence epidemic in America. The study by Professor Michael Siegel at Boston University and two co-authors on effects of national decline in firearms showed that whenever the gun proportion per house hold increased by one percent, the is a 0.9 percent increase in firearms related homicides. This slight change is seen to increase murder by 12.9 percent. The Professor uses state of Mississippi as an example stating that if the firearm proportion is reduced from 76.8% to 57.7% then the rate of firearm homicide would reduce by about 17%. Given that 475 deaths occurred from firearms in 2010, if firearms were reduced in that year by 17% this would save 80 lives (Beauchamp). According to Kristen Rand, more and more deaths are occurring from firearms possessed by permitted holder. These deaths have been during simple arguments such as scramble for space in parking lots and domestic arguments. He further argues that presence of firearm escalates a simple argument into a homicide. Mike Duggan is against the argument that an increase in guns has lead to a decrease in firearm deaths. He states the reason to for this reduction to be as a result of economic growth over the past years. Other argument is that in as much as giving people the right to carry a gun gives them the ability for protection, it also gives criminals a way to do crime. By allowing people to carry guns leads to extending the right to criminals and felons. This guarantees weapons into the wrong hands and it makes law enforcement a nightmare (Prosandcons.org). In states where the right of owning a handgun is upheld, there has been a significant reduction of crime such as rape, assaults, murder and robbery. This is even after factors such as poverty, police arrests, unemployment and other determinant factors have been taken into consideration. On the other hand, states that did not uphold the right did not show significant reduction of such crimes. John Lotts states that there were up to 1000 fewer rapes and murders and 10,000 fewer robberies. Compared to gun carrying accidental shootings, this reduction is vastly greater. It is not the law abiding citizens with legal handguns that commit crimes, but crime is committed by those criminals who illegally own guns. Criminals do not risk attacking homes where there are guns; hence laws that prohibit gun ownership do not protect the citizens but exposes them to danger of attack by criminals. The Second Amendment is a guarantee that there will be no infringement on the people’s right to possess firearms, this simply implies that citizens who abide by the law need not to beg the government to have permission to carry firearms (prosandcons.org). Proposal for protecting the right There are five basic facts that every American should be aware of in regards to the 2nd amendment, these facts should as a reason to protect the 2nd amendment against infringers. First it should be known that the 2nd amendment protects an individual’s rights that are in existence prior to any government formation. As clearly stated by the declaration of independence, every human being has certain rights and the government comes into existence to protect such rights. Such unalienable rights such as freedom from violent harm and right of self defence were in existence before the formation of such governments. These are evident in other references such as Torah, Talmud, Roman Catholic doctrine and protestant doctrine. The second fact is the government is prohibited from infringing the right of the people by the language used in the 2nd amendment. Just in the same way the congress is prohibited from infringing the freedom of speech, press and religious expression in the 1st amendment so does the second prohibit the government from infringing the right to bear firearms. It is not sound to interpret the first as stronger while the second as weaker. The third is that the 2nd amendment upholds the right of the people to form a well regulated militia. This right was not questioned by founding fathers. The forth fact is that the opening phrase of Second Amendment that states “A well-regulated militia being necessary to the security of a free State.” does not limit the power of firearm ownership to the militia. Research has proved that this was a writing style in 1700s used on legal documents as it includes a preamble. Both the constitution and the bill of rights have preambles yet they are not limited to that. It is not sound to claim that the right is only limited to the militia or the National Guard. The militia clause simply emphasises the right of an individual ownership of firearms as it explains its most important purpose. The fifth is that prior to civil war a lot of states enacted laws that prohibited slaves and free black people from possessing arms unless they had permission from either their masters or the government. The 2nd Amendment did not stretch its protection to black people by then as they were not considered as citizens and it only limited the federal government’s power. Despite the fact that the designers of the 2nd amendment did not want to be slaves of their government, they unfortunately allowed slavery in some states. Given that slavery is abolished, all citizens from all races should enjoy this right against such governments (Stephens). The 2nd amendment was adopted in 1781 after several debates by the congress. Its original intent was to give power to the people and to enable take up arms and defend themselves against tyrants and unjustified forces and invaders. The Second Amendment has faced numerous threats, some political, economical, and social. In numerous occasions the courts have been required to interpret the Second Amendment, in 1939 in the case of Miller vs. the US government the court ruled that the 2nd amendment only gave the government power to bear arms. 70 years later the Supreme Court for the first time rule in favour of the people in the case of the District of Columbia vs. Heller and later also upheld the same in the case of McDonald v City of Chicago. In both cases the court rule against the states that they had infringed the Second Amendment and the people had a right to bear arms. Other threats include crime and violence being related to the right to bear arms. The most outstand argument against the Second Amendment is that the increased ownership of firearms has led to increased crime, yet in some states where firearms exist in homes there has been reduced crime rate. There exist five facts that every citizen needs to know as they form the basis of protecting the Second Amendment. Works Cited Acosta Luis. United States: Gun ownership and the Supreme Court. 2008. Web. http://www.loc.gov/law/help/second-amendment.php Am J. Changing the Constitutional Landscape for Firearms: The US Supreme Courts Recent Second Amendment Decisions. NCBI. 2011. Web. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3222390/ Bauchamp, Zack. The largest study ever: More guns, more murder. Think Progress. 2013. Web. http://thinkprogress.org/justice/2013/09/13/2617131/ largest-gun-study-guns-murder/ Capitalism Institute. The original intent of the Second Amendment. 2014. Web. http://www.capitalisminstitute.org/second-amendment/ Center for Disease Control And Prevention. Fast stats: Assaults and homicides. 2013. Web. http://www.cdc.gov/nchs/fastats/homicide.htm 2014-5-21 Cornell University Law School. Legal information institute, Second Amendment. 2014. Web. http://www.law.cornell.edu/wex/second_amendment 21-5-2014 Davis, Kenneth. Domestic violence: Violence in the United States, net wellness. Aug 21 2009. web, http://www.netwellness.org/healthtopics/domesticv/violenceus.cfm Gunspolicy.org. United States gun facts, figures and laws. 2014. Web http://www.gunpolicy.org/firearms/region/united-states Legal Information Institute. CRS annotated Constitution: Bearing arms, the second amendments. 2014. Web. http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd1 Prosandcons.org. Concealed guns: Should adults have the right to carry concealed handguns. 2014. Web. http://concealedguns.procon.org/view.answers.php?questionID=001609 Stephens, Richard. The Six Things Americans Should Know About the Second Amendment Jews for the preservation of firearm ownership. 2014. Web. http://jpfo.org/filegennz/sixabout2nd.htm The charter for freedom, bill of rights. 2014. Web. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html Read More