Given the ongoing spate of mass shootings in the U.S., discussions are once again taking place – both at the federal level and the state level – about gun rights and potential gun restrictions. In addition, the U.S. Supreme Court is expected to release its decision later this month in the matter of New York Rifle and Pistol Association v. Bruen – with many court watchers predicting that the outcome will result in the overturning of New York State’s stringent licensing rules regarding the carrying of concealed weapons outside the home
.Although I was originally planning to write an Op-Ed regarding this topic, I decided to first write a series of posts about it so that I could get the input of Trials & Truths’ readers. Hopefully, this process will make all of us better informed about a topic that, along with abortion, looks as though it may become one of the more impactful issues in the upcoming Fall elections.
History of the Second Amendment
Although it only consists of twenty-seven (27) words, the Second Amendment to the U.S. Constitution has likely caused more arguments and disagreements than any other section of the document.
The full text of the Second Amendment is as follows: “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.”
The wording of the Second Amendment, which was ratified in 1791 along with the nine other constitutional amendments that make up the Bill of Rights*, is very similar to the language of clauses that appeared in the constitutions of some of the original 13 states: i.e., Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island.
The initial supporters of the Second Amendment were concerned that the newly-created federal government might seek to weaken the individual states by denying them the right to organize – and arm – local militias. Thus, it was shortly after the U.S. Constitution was ratified that James Madison proposed the Second Amendment as a way to ensure that state militias would always be adequately armed.
Almost since the Second Amendment was ratified, there has been an ongoing debate about its meaning. On the one side are those who believe that it was intended to protect the right of private individuals to own and bear arms. On the other side are those who believe that it was intended to establish a collective right that can only be exercised through organized militia units.
In determining which interpretation is more supportable, it’s important to note that at the time the Second Amendment was adopted, the term “Militia” referred to groups of men who banded together to protect their local communities. Eventually, that definition was changed to refer to groups of men who banded together to defend their home state.
Those who support the notion that the right to own weapons is a collective right point to the “well-regulated Militia” language in the Second Amendment – and argue that this right was only intended to be given to organized groups like each state’s National Guard unit (Those units generally replaced state militias after the Civil War).
On the other side are those who believe that the Second Amendment gives all citizens the right to own arms in order to protect themselves. Led by the National Rifle Association, which was founded in 1871, this group has continuously challenged gun control measures at all levels of government.
Historical Events Regarding Second Amendment Rights
Since the Second Amendment was enacted in 1791, there have been several statutes passed – and several cases decided by the U.S. Supreme Court – addressing various aspects of Second Amendment rights. As summarized in Wikipedia, these are as follows:
- In 1934, the National Firearms Act (NFA) was signed into law under President Franklin D. Roosevelt’s Administration in an effort to curb prohibition-era violence. Between 1920 and 1933 the homicide rate in the United States had been rising year-over-year as an example of the unintended consequences of passing Prohibition into law, and the concomitant violence associated with making illegal a widely in-demand product. The NFA is considered to be the first federal legislation to enforce gun control in the United States, imposing a $200 tax, equivalent to approximately $3,942 in 2022, on the manufacture and transfer of Title II weapons. It also mandated the registration of machine guns, short-barreled rifles and shotguns, heavy weapons, explosive ordnance, suppressors, and disguised or improvised firearms. When Prohibition was ultimately repealed in 1933, and the monopoly on alcohol maintained by organized crime was ended, there was a significant decline in the homicide rate. In fact, “…homicides continued to diminish each year for eleven years straight [after the repeal of Prohibition].”
- In 1938, President Franklin D. Roosevelt signed the Federal Firearms Act of 1938 (FFA) into law, requiring that all gun-related businesses must have a Federal Firearms License (FFL).
- In 1939, through the court case United States v. Miller, the Supreme Court of the United States ruled that Congress could regulate interstate selling sawed-off shotguns through the National Firearms Act of 1934, deeming that such a weapon has no reasonable relationship with the efficiency of a well-regulated militia.
- In 1968, following the spree of political assassinations including: the assassination of John F. Kennedy, the assassination of Robert F. Kennedy, and the assassination of Martin Luther King Jr, President Lyndon B. Johnson, pushed Congress for the Gun Control Act of 1968 (GCA). It repealed and replaced the FFA, regulated “destructive devices” (such as bombs, mines, grenades, and other explosives), expanded the definition of machine gun, required the serialization of manufactured or imported guns, banned importing military-style weapons, and imposed a 21-age minimum on the purchasing of handguns from FFLs. The GCA also prohibited the selling of firearms to felons and the mentally ill.
- In 1986, contrary to prior gun legislation, the Firearm Owners Protection Act (FOPA) (1986), passed under the Ronald Reagan administration, enacted protections for gun owners. It prohibited a national registry of dealer records, limited ATF inspections to conduct annual inspections (unless multiple infractions have been observed), allowed licensed dealers to sell firearms at “gun shows” in their state, and loosened regulations on the sale and transfer of ammunition. However, the FOPA also prohibited civilian ownership or transfer of machine guns made after May 19, 1986, and redefined “silencer” to include silencer parts.
- In 1993, the Brady Handgun Violence Prevention Act, named after a White House press secretary who was disabled during the attempted assassination of Ronald Reagan, was signed into law under the presidency of Bill Clinton. This act required that background checks must be conducted on gun purchases and established a criminal background check system maintained by the FBI.
- In 1994, the Violent Crime Control and Law Enforcement Act was signed into law under the presidency of Bill Clinton, which included the Federal Assault Weapons Ban, effectively banned the manufacturing, selling, and possession of specific military-style assault weapons such as AR-15 style rifles and banned high-capacity ammunition magazines that held over 10 rounds. Banned arms that were previously legally possessed were grandfathered. The ban expired in September 2004.
- In 2003, the Tiahrt Amendment proposed by Kansas Representative, Todd Tiahrt, limited the ATF to only release information from its firearms trace database to only law enforcement agencies or a prosecutors in connection with a criminal investigation.
- In 2005, The Protection of Lawful Commerce in Arms Act was signed into law under the presidency of George W. Bush. This act protected gun manufacturers from being named in federal or state civil suits by those who were victims of crimes involving guns made by that company.
- In 2008, the Supreme Court ruled in the case District of Columbia v. Heller that the Second Amendment is an “individual right to possess a firearm unconnected with service in a militia” and struck down Washington D.C.’s handgun ban. But the Supreme Court also stated, “that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated.”
- In 2010, the Supreme Court ruled in the case McDonald v. Chicago that the Second Amendment is incorporated and thus applies against the states.
- In 2016, the Supreme Court ruled in the case Caetano v. Massachusetts that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”.
Pros & Cons Regarding the Second Amendment
As set forth in an April 20, 2019 article in Connect US, there are a total of 7 “Pros” and 10 “Cons” regarding the Second Amendment. These are as follows:
RE: The “Pros”
1. Gun Ownership Works to Reduce Other Types of Crime in Society
Frank Lloyd Wright once said, “I’m all in favor of keeping dangerous weapons out of the hands of fools. Let’s start with typewriters.” The fact will always be that a gun is a tool and nothing more. Can it be used to kill someone? Yes. Is it possible to inflict mass casualties with certain types of firearms? Yes. It can also be useful for hunting to provide food for one’s family. Guns can protect you when someone breaks into your home. People use them to drive off predators that try to take their livestock. Owning a gun can even reduce homicide numbers, sexual assault, and aggravated assault by at least 5%.
2. The Second Amendment Offers People a Chance to Defend Themselves
According to information published by the National Sheriffs’ Association, the average amount of time for a school shooting to take place is 12.5 minutes, but it takes police officers 18 minutes to respond to the first calls that come across emergency lines. Active shooter incidents in all locations, but especially schools, have risen at an alarming rate in recent years. During the entire decade of the 1960s, there was one incident. In 2015, there were 55 active shooter incidents in American schools. As Cooper wrote, the only choice that we can make is one that allows us to protect ourselves. We can’t stop bad people from getting their hands on a gun to use it for evil purposes, but we can help good people find ways to stop them with the same tool.
3. It Reinforces the Laws of the Constitution by Its Mere Presence in the Bill of Rights
Alan Dershowitz may not be a fan favorite of every conservative in the United States, but he does offer this observation about the Second Amendment. “Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right or that it’s too much of a public safety hazard don’t see the danger in the big picture. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.”
Guns might be controversial in some ways because of the ease that they inflict damage, but it is also because of this tool that people in the U.S. have the freedoms that are available to them. When you start to erode one granted right, it does not take long for more of them to experience the same outcome.
4. The Second Amendment Allows the Average Person to Defend Their Country
In Priority, Aaron Powell makes this observation about the Second Amendment. “When the Chinese invade our country, who do you want to depend on? The over-extended police force and the National Guard? Or the next-door neighbor who is a former Marine and has enough guns and ammunition for your entire block?”
The entire point of the Second Amendment from the perspective of the founding fathers is still valid. When you own a gun, then it is more difficult to take away what you have earned in life than if you did not own this weapon. People will think twice (or more times) about trying to take something from you, including domestic and foreign governments, if you have the capacity to defend yourself adequately.
5. It Allows for a Well-Regulated Militia to be Part of the U.S. Culture
The focus on the Second Amendment is often on the right of gun ownership, but it is also essential to note that there is the right for states to have a well-regulated militia because of this addition to the Bill of Rights. Even though we have numerous levels of law enforcement that work to serve and protect our communities, there may still come a time when there is a need to keep the peace in other ways. This option allows for states to develop their own defensive resources without costing taxpayers in other locations any money to do so. If you need to defend your home for any reason, all you need to do is get together, form a militia, and follow whatever state rules are in place for organization.
6. You Must Qualify to own a Gun in the United States Already
There are already regulations in place that make it impossible for anyone to walk into a gun shop to make a purchase. Any store that sells firearms must use the National Instant Criminal Background Check System, called NICS, to see if there are any records in place that would prevent a customer from owning a gun. This system scans three different databases to ensure there are no matches. Anyone declared mentally unfit, convicted of a felony, or receives a misdemeanor sentence of 2+ years will not qualify for the purchase. Lying on the form in an attempt to purchase the gun is also considered an illegal act which could strip you of the firearm when discovered.
7. The Second Amendment Offers More Checks-and-Balances for Society
When the founding fathers creating the structure of the American government, they wanted to make sure that no one branch of it could hold more power than the other. The system of checks-and-balances ensures that the executive, legislative, and judicial branches must work together to the benefit of society.
The Second Amendment offers this same benefit for the average person in their daily routines. It is a way to protect your individual liberties to ensure that you are not deprived of the right to pursue happiness. “The truth is that all men having power ought to be mistrusted,” said James Madison. Gun ownership is a way to ensure that the government is obliged to control itself in addition to supervising the governed.
RE: The “Cons”
1. It Does Not Provide for the Safe Usage and Implementation of a Gun in Society
“Saying gun control hurts our freedom is a false argument amounting to propaganda,” said DaShanne Stokes. “Gun laws don’t curtail freedom any more than speed limits or seat belts. You still get to drive your car and have guns. We’re just trying to save lives as you do.” Although the Second Amendment does allow for the private ownership of guns according to the current interpretation offered by the Supreme Court, it does not contain provisions that require the safe use of this tool. That level of implementation is left to the states, which means there is a patchwork series of laws that gun owners must follow to stay in compliance.
2. There Is No Guarantee That a Good Guy With a Gun Is Going To Be Around
DaShanne Stokes has also said that gun violence in the United States is not a Republican or Democrat problem, but an American problem – and one that requires an American solution. “When a country with less than 5% of the world’s population has nearly 50% of the world’s privately-owned guns and makes up nearly a third of the world’s mass shootings, it’s time to stop saying guns make us safer,” he said.
Even though there are plenty of stories about a good guy with a gun stopping a crime that you can find, there are also more than 14,000 homicides attributed to firearms each year in the United States. That means 4.5 deaths per 100,000 population are because of guns.
3. Gun Ownership Comes With Great Risk to the Owner’s Household
There are plenty of good reasons to own a gun in today’s American society, but there are also a few reasons why some families believe that the rights given under the Second Amendment are not something they want to use. That is because up to 95% of the suicides that occur with a firearm are potentially preventable if the gun wasn’t present in the home. Households that own just one gun carry a 7 times higher risk of experiencing premature death than those without one.
Even the states which have the least amount of controls places on gun ownership see homicide rates that are more than double those of states with the most extensive restrictions. The problem with a firearm is that this tool doesn’t offer many second chances.
4. There Are Multiple Ways to Deter Crime Other Than Gun Ownership
In Guns Part 2, Aaron Powell makes this observation:
1. “So, disturbed kids are taking guns to school and killing teachers and classmates. We better make sure kids can’t get guns.”
2. “So, disturbed kids are taking guns to school and killing teachers and classmates. We better find out what’s making these kids want to kill, fix that, and then they won’t want to use guns to kill teachers and classmates.”
Both sides of the Second Amendment debate can quote statistics which support their argument. There are stories about how gun ownership can save lives, just as there are times when it takes lives. Saying that guns are the only way to deter crime is laziness. There are multiple facets of protection that we can implement every day if we are willing to take bold steps to protect ourselves, our loved ones, and our communities. Can guns stop a crime? Sure. So can an alarm system, an airlock system in schools, metal detectors, and many more methods. We cannot have tunnel vision on just one outcome.
5. It Creates the Potential for a Domestic Arms Race
“If Jesus Christ himself were to come down off the cross and grant you one wish, would you opt for a world without guns – or the one we live in now?” asks Quentin Bufogle. “If every gun owner truly feared for their life and liberty, the answer would be obvious.”
When we push toward a world of gun ownership, then we are creating a society where good and evil are both racing toward a place where each feel like it can be a dominant force. This perspective is what fueled the nuclear race during the Cold War, and it is also what causes some people to stockpile firearms. There are an estimated 89-100 guns for every 100 Americans, but only up to 29% of households actually own one. 14% of owners have between 8 to 140 guns in their possession, accounting for 50% of civilian ownership
6. We Already Know that the Current Gun Control Laws Don’t Work
According to reporting from The New York Times, only 8 states have laws which provide an explicit mechanism so that people who are suspected of owning guns in violation of their prohibitions are required to hand them over. Some of these laws allow, but do not require, the police to seek a court order for confiscation.
Authorities in Chicago knew for over 4 years that Gary Martin was a felon with a violent history, yet did nothing to make sure that he surrendered his Smith and Wesson handgun with a laser sight. He used that weapon to kill five of his co-workers in Aurora, IL, in February 2019. It would be helpful to enforce the laws on our books to ensure that we are doing all that we can to stop the bad guys with guns.
·7. The Second Amendment Increases the Cost of Law Enforcement
Open-carry laws for gun ownership because of the Second Amendment create a phobia about this tool that increases the amount of resources that law enforcement must receive each year. 40% of Americans already say that one of their biggest fears is that they will end up being the victim of a mass shooting. Firearms are already the second-leading cause of death for American children and teens. Women are 21 times more likely to be killed with a gun in the United States than they are in other high-income countries.
Because there are so many guns on the streets, even if they are owned by a minority of the population, the resources dedicated to law enforcement activities are that much higher. Even a slight reduction in this cost could be directed toward something more useful, like free firearm education programs.
8. This Amendment Hass Seen Inconsistent Application in the Law
Before the recent Heller ruling set the precedent for individual ownership as a right, the judicial system interpreted the Second Amendment as applying to militias only. That meant no one had the right to travel with their gun across state lines. The common law standard was that there was a duty to retreat if someone wanted to take your things. If you lived in the city, then a loaded firearm was banned from being in your home.
Once upon a time, you even had to swear a loyalty oath as an American to have the right to own a firearm. Refusing to take that pledge meant that your right to gun ownership disappeared. It is an inaccurate statement to say that the U.S. has never had gun restrictions in place before. What we are doing is creating inconsistent case law based on current political desires
9. There Is No Right To Own a Firearm If You Cannot Afford the Cost
One of the unique aspects of the Second Amendment is that it doesn’t mention the cost of ownership as part of your individual rights as an American. There is nothing that would stop Congress from passing a law which required a minimum price for this item, similar to the expense one must pay to obtain a passport or a driver’s license. The only thing that the Bill of Rights guarantees is that if you can afford the cost of a gun and there are no other restrictions in place for you, then this is an opportunity that you can have.
10. The Second Amendment Does Not Exclude Specific Actions, Behaviors, or Choices
The Second Amendment would be arguably more powerful if it created specific restrictions to ownership based on high-risk behaviors. Several demographics, including teens with a history of violence, can still purchase firearms despite their history of choices. Even people convicted of a gun crime can still buy more of them if they are not convicted of a felony and their misdemeanor sentence is less than 2 years in some states
RE: The Second Amendment: Part 2
In my next post in this series, I’ll review some of the gun law restrictions that have been proposed in the past – as well as those that are currently being considered by a bipartisan group of U.S. Senators. In conjunction with that review, I’ll also identify some of the restrictions that have been implemented at the state level and the local level – and discuss the potential impact that the soon-to-be-released decision in the New York Rifle and Pistol Association v. Bruen case may have on those restrictions.
Seeking Input from Readers
Here are some questions for readers to contemplate – and, better yet, to respond to:
- Are there other “Pros” regarding our current laws concerning the Second Amendment?
- Are there other “Cons” regarding our current laws concerning the Second Amendment?
- Do you own one or more guns – and if so, why did you obtain each one?
- Do you feel safer knowing that you could currently purchase a gun for your protection?
- Do you think handgun owners should be allowed to conceal-carry their weapons while outside of their homes?
- Should there be any restrictions regarding guns in the United States – and, if so, what should they be?
- If we’re going to have gun restrictions regarding guns, should each state be allowed to decide its own policies – or should the federal government set these?
- Should people convicted of non-violent crimes – and crimes not involving guns – be automatically disqualified from ever owning a gun?
- Do you support “red flag laws”?
- Do you support “comprehensive background checks” for prospective gun owners?
*In September 1789, the first Congress of the United States approved 12 amendments to the original U.S. Constitution. Two years later, Virginia became the 10th of the then-14 states to approve 10 of those 12 amendments. Of the two amendments that were not ratified, one concerned how each state’s population would determine its representation in Congress – and the other prohibited Congress from raising its members’ pay until an intervening election had occurred: i.e., a sitting Congress could not raise its own members’ salaries. Although the first of those was never passed, the second was finally ratified in 1992, more than 200 years after it had first been proposed.
#Second Amendment – #GunRestrictions