Right to Bear Arms

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A mere 27 words in the Second Amendment of the Bill of Rights somehow manageto incite some of the most heated and occasionally violent debates over two centuries after its drafting. The Second Amendment provides: "A well regulatedMilitia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Widely divergent contentions emerge from this sentence. Some believe that the Second Amendment provides an absolute, personal right to bear arms. Others argue that any right tobear arms is subordinate to ensuring public safety. A third argument contendsthat the Second Amendment simply restricts the powers of the national government and grants the states the right to maintain a militia separate from a federally-controlled army.
Most of the controversy surrounding the Second Amendment has arisen in the second half of the twentieth century, although that controversy has been playedout much more frequently in the press than in the courts. The Second Amendment has been interpreted in a relatively small number of cases. Nevertheless,the United States Supreme Court has been virtually unwavering in its readingof the amendment. In essence, the Supreme Court historically has defined theSecond Amendment as giving states the right to maintain a militia separate from a federally controlled army. The Court has never recognized an individual's unconditional right to own firearms, nor has any lower court so ruled. Courts have consistently held that the state and federal governments may lawfullyregulate the sale, transfer, receipt, possession, and use of certain categories of firearms, as well as mandate who may and may not own a gun. Although the National Rifle Association (NRA) has repeatedly referred to a constitutional right to gun ownership, one has never been recognized, nor do the courts show the slightest indication of moving toward such a recognition.
History of the Right to Bear Arms
The first recorded instance of gun control was in England in 1671, a few years following its Civil War. The Game Act restricted hunting and gun ownershipamong the peasants while permitting the wealthy to maintain their weaponry and to own hunting lands. Persons below a certain income level were not allowedto keep weapons, even for self-defense. A few years later the English Bill of Rights included a right of Protestants to bear arms, and also denounced theabuse of standing armies. The colonists coming to America brought with themthe English tradition of using arms for self-preservation and defense.
Self-preservation and defense quickly became crucial to the colonists. Firearms were needed for protection of life, and for sustenance. Colonists were imbued with a fear of standing armies because of the Boston Massacre, the seizure of arms and militia at Lexington, and other Revolutionary War incidents. Clearly, the Revolutionary War would have had a different outcome had individual citizens not taken up arms to fight the Red Coats.
Reflecting the times in which it was written, the Virginia Constitution, adopted in June of 1776, provided that "a well-regulated Militia, composed of thebody of the people, trained to arms, is the proper, natural, and safe defence of a free State." It also acknowledged the danger of a standing army. Othercolonies enacted similar provisions. Some constitutions from the late eighteenth century spoke of a "right" to bear arms, while others denominated it a "duty." This fear of standing armies and a tyrannical central government, as well as the fact that individual armed citizens were crucial to the American'svictory in the Revolutionary War, provided the backdrop to the drafting of the Second Amendment.
Interpretation of the Second Amendment
The historical context of an amendment illuminates its text, but in the finalanalysis, its meaning is determined only upon examination of the specific words in the amendment. Only the Second Amendment starts with a "mini-preamble." For years scholars have debated as to whether "militia" was intended to bethe subject of the sentence, and whether the comma before "shall" was grammatically necessary, or if it was a mistake.
The Second Amendment and a right to bear arms were first addressed in the 1875 case of United States v. Cruikshank. The case dealt with some Ku Klux Klansman convicted of conspiring to deprive two African Americans of the right to assemble, the right of free speech, and the right to keep and bear arms. The Supreme Court held that "bearing arms for a lawful purpose is not a right guaranteed by the Constitution . . .The Second Amendment declares that itshall not be infringed; but this . . . means no more than it shall not be infringed by Congress. This [amendment] has no other effect than to restrict the powers of the national government." Cruikshank began the precedent that continues to the present day: unlike most of the rest of the Bill of Rights, the Second Amendment has never been incorporated into the Fourteenth Amendment (it pertains only to federal power and has never been made applicable to the states through the Due Process Clause of the Fourteenth Amendment).
The 1886 case of Presser v. Illinois involved a challenge to an Illinois law barring paramilitary organizations from drilling or parading without alicense. Although stating that "it is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States," and "states . . .cannot prohibit the people form keeping and bearing arms," the Supreme Court found that the challenged activity"is not an attribute of national citizenship." Presser confirmed thatthe Second Amendment's meaning is to prevent the federal government from infringing upon the right of the state to form militias, and unequivocally rejected the idea of a citizen-created militia. Two more late-nineteenth century cases, Miller v. Texas, and Robertson v. Baldwin, essentially reiterated these points.
Although debate surges unabated around the right to bear arms, the Supreme Court has only once addressed the issue in the twentieth century. In UnitedStates v. Miller (1934), two men challenged their convictions for transporting an unregistered 12-gauge sawed off shot gun across state lines, a violation of the National Firearms Act. The Supreme Court ruled that the Second Amendment does not guarantee the right to keep and bear a double-barreled, sawed off, 12-gauge shot gun, because its possession did not have "some reasonable relationship to the preservation or efficiency of a well-regulated militia."
The Supreme Court has shown no indication of revisiting these early cases, and the lower courts have generally followed precedent. In one widely-publicized case in the United States Court of Appeals, Quilici v. Village of MortonGrove (1982), a town's ban of handguns was found to be constitutional. The Supreme Court declined to accept an appeal of the case.
Gun Control Legislation
It is impossible to determine the number of firearms in the United States because many guns are unregistered. Nevertheless, the Bureau of Alcohol, Tobacco, and Firearms (ATF) estimated that private citizens owned more than 220 million firearms by 1995. Depending on where one lives, a person may only be forbidden from carrying a concealed handgun, or may be forbidden from owning a handgun at all.
Congressional power to regulate firearms stems from the Commerce Clause of the Constitution. The Commerce Clause empowers the federal government to regulate commercial activity between the states and commerce with foreign countries. Generally speaking, states and the federal government have successfully (1)denied certain individuals, i.e., convicted felons and the mentally incompetent, the right to own firearms; (2) required licenses and made owners pass afirearms safety examination (3) made illegal the possession and transfer of certain firearms; and (4) required registration for certain classes of firearms.
The National Firearms Act of 1934, still in effect today, was passed to hinder acquisition of certain dangerous weapons, including machine guns and sawed-off shotguns. Key components of this legislation included heavy taxes on themanufacturing and distribution of firearms and required registration throughout production, distribution, and sale. The Federal Firearms Act of 1938 provided for federal licensing of firearms dealers, regulated firearm transportation across state lines by dealers, outlawed the transportation of stolen gunswith the manufacturer's mark eradicated or changed, and outlawed firearms from being sent to fugitives, indicted defendants or convicted felons.
The National Firearms Act was later amended significantly by the Gun ControlAct of 1968, passed in the wake of the assassination of President John F. Kennedy and others. The Gun Control Act also repealed the 1938 Federal FirearmsAct. and replaced it with increased federal control. The Gun Control Act contained far-reaching provisions, pertaining to licensing, sales, buyer requirements, and the importation of non-sporting guns. For all its measures, the lawdid not forbid the importation of unassembled weapon parts. Gun control advocates were not satisfied and called for stricter laws; owners and dealers decried the Gun Control Act as burdensome and infringing on personal rights. Finally in 1986, the Firearm Owners' Protection Act (also known as the Gun Control Act of 1986) was passed, amending the 1968 law. The 1986 Gun Control Act imposed some new restrictions and extended prior ones, but in some instances it eased requirements of the 1968 law. Machine guns made after 19 May 1986 were banned from sale by the 1986 Firearms Owners Protection Act.
Hijacking fears prompted plastic guns or other undetectable firearms to be targeted and banned from manufacture, sale, import, transfer or possession by the Undetectable Firearms Act of 1988. Also in 1988, Congress required look-alike toy guns to have a "blaze orange plug inserted in the barrel." In late 1994, following two separate police shootings of youths with toy guns, three large toy retailers, including Toys `R' Us, Inc., decided to stop selling look-alike guns. The Crime Act of 1994 banned the sale and possession of 19 assault-type firearms and certain high-capacity ammunition magazines.
The Gun-Free School Zone Act, passed in 1990, outlawed the knowing possessionof firearms in school zones, and made it a crime to carry unloaded firearmswithin 1,000 feet of the grounds of any public or private school. This law was later held unconstitutional in 1995, in United States v. Lopez. Thedecision was based upon a determination that the law did not establish an adequate connection between commerce and gun-free school zones, as required by the Commerce Clause.
The 1982 assassination attempt on President Ronald Reagan eventually resultedin the Brady Handgun Violence Prevention Act of 1993. The Brady Bill imposeda five-day waiting period before a handgun may be taken home by a buyer. Thelaw set a timetable for the expiration of the waiting period and provided for replacement of a computerized background checks. The law also mandated thatlocal chief law enforcement officers conduct background checks on prospective handgun purchasers buying from federally licensed dealers. This part of thelaw was struck down by the Supreme Court in 1997 in Printz v. United States as unconstitutional under the Tenth Amendment.