December 11, 2009

The right to bear arms

The Second Amendment to the U.S. Constitution is at the heart of the issue of gun control. The Second Amendment declares "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."

To understand 2A, one must interpret the text, the historical background for its adoption, and the intent of the framers of our Constitution. Such a thorough investigation has not always been undertaken as the rights of gun owners have been debated in Congress, the courts, state legislatures and city halls.

History shows us that the struggle with England and King George prompted the American people to be very wary of a standing army, and of a supreme leader. The founders recognized that one man with supreme power and a large, armed force could easily be tempted into unjust action against the citizens. For that reason our political system contains the many checks and balances prohibiting one branch from dominating over either of the other two.

2A, therefore, spoke to the founder’s concern that the government should never gain power over the individual. The amendment was framed to protect individual citizens from oppression by government as much as to allow citizens a means of self-defense from criminals and invading armies alike.

A militia is the only safe form of military power that a popular government can employ; and because it is composed of the armed [citizens], it will prevail over the mercenary professionals who man the armies of neighboring monarchs.” [1]

Firearms have been a part of this nation since the time before we were a nation. To 16th century Americans, possessing firearms was common and necessary. There was resistance in that first Congress to the inclusion of 2A for this reason. That free firearm ownership should be enshrined in our constitution seemed unnecessary. “[T]his right had not been questioned, for it was viewed as a traditional privilege lying outside the Constitution...”[2] Citizens with firearms was so commonplace at the time that many of our founders were not concerned with codifying this right into law.

The situation is far different today. There is much controversy and the intent of the founders is up for debate. SCCOTUS has been an on again, off again friend to gun owners in this regard. The traditional view of free ownership of firearms was questioned in U.S. v. Miller (1939), when SCOTUS held that the amendment merely protects the right of states to form a state militia. Even before the Miller interpretation, Congress, state legislatures, and local governing bodies were passing laws that restricted the right to bear arms. Kentucky passed the first state legislation prohibiting the carrying of concealed weapons, in 1813, and by 1993, firearms were regulated by approximately 23,000 federal, state, and local laws. [3]

State and local firearms laws vary widely. Some states prohibit the carrying of concealed handguns while others require permits for concealed carry. Three Chicago suburbs—Morton Grove, Oak Park, and Evanston—ban handgun ownership outright. Generally, firearms regulations have been more restrictive in large metropolitan areas.

While states base their power to control firearms on the police-power provisions of state constitutions, Congress derives its power to regulate firearms in the Commerce Clause, in Article I, Section 8, Clause 3, of the U.S. Constitution. Under the Commerce Clause, Congress may regulate commercial activity between the states and with foreign countries. In reviewing federal legislation enacted pursuant to the Commerce Clause, SCOTUS has granted tremendous leeway. Congress may enact criminal statutes relating to interstate firearms transactions, and that body has utilized that leeway to a great extent.

In 1927, Congress passed the Mailing of Firearms Act, which banned the shipping by mail of concealable handguns, then followed this with the National Firearms Act of 1934, which placed heavy taxes on the manufacture and distribution of firearms. A few years later, Congress enacted the Federal Firearms Act of 1938, prohibiting unlicensed manufacturers and dealers from shipping firearms across state borders.

In 1968, following the assassinations of John Kennedy, Malcom X, Martin Luther King Jr., and Robert Kennedy, public outcry prompted the passage of the Gun Control Act of 1968, which repealed the Federal Firearms Act and replaced it with increased federal control over firearms, destructive devices (bombs, grenades, etc.) and explosive materials.

The attempted assassination of Ronald Reagan in 1981 and the shooting of his aide James Brady led to pressure for even more gun-control. It took them 12 years, but in 1993 Congress passed the Brady Handgun Violence Prevention Act, which amended the 1968 GCA, requiring U.S. attorney general to establish a national instant background check system and immediately put into place certain interim provisions, including a waiting period, until the federal system became operational. These measure cast the burden upon local and state law enforcement, and the uproar and outrage was immediate.

Law enforcement across the country objected to the onerous burden of performing the required background checks. Some sued, and various district courts ruled the requirement unconstitutional. However, the U.S. Court of Appeals for the Ninth Circuit consolidated two of the cases and reversed these decisions, finding none of the Brady Act's interim provisions unconstitutional. The question was off to the Supreme Court.

SCOTUS, in Printz v. United States, (1997) reversed the Ninth Circuit, ruling that the interim provisions were unconstitutional. Justice Scalia believed that the interim provisions disturbed the separation and equilibrium of powers among the three branches of the federal government by transferring the President’s duty to administer enacted laws to Congress. The Brady Act "effectively transfers this responsibility to thousands of CLEOs [Chief law enforcement officers] in the 50 states," leaving the president with no meaningful way of controlling the administration of the law. Thus, according to SCOTUS, CLEOs could not be required to accept Brady Forms from firearms dealers.

In Gillespie v. City of Indianapolis, (1999), a former police officer, who had been convicted of domestic violence and lost his job, challenged the Brady prohibition of persons convicted of domestic violence offenses from possessing a firearm in, or affecting, interstate commerce. The Seventh Circuit found that Gillespie had standing to challenge Brady, noting that 2A was intended to ensure protection by a militia for the people as a whole.

SCOTUS, however, failed to find a reasonable relationship between ownership of a particular gun and the preservation and efficiency of a state militia, and ruled against Gillespie. Other lower federal courts have similarly held that 2A does not prohibit the federal government from imposing some restrictions on private gun ownership.

The next assault (pun) came in August 1994 when Congress passed. This act banned the manufacture, sale, and use of nineteen types of semi-automatic weapons and facsimiles, as well as certain high-capacity ammunition magazines.

A bit of a tide change came in 1995 when SCOTUS set some limits on congressional efforts to control guns with the landmark decision in United States v. Lopez. The Court ruled that Congress had exceeded its authority under the Commerce Clause by passing the Gun-Free School Zones Act of 1990, holding that such gun possession was not an economic activity that significantly affected interstate commerce, and therefore beyond Congress's power to regulate.

Large cities have always been at the forefront of the gun control effort, and in 1998 several brought lawsuits against the gun industry to recover mounting costs in law enforcement and health care. Mayors from New Orleans, Miami, Chicago, San Francisco, Chicago, Cleveland, Cincinnati and Philadelphia hoped to emulate the success of the tobacco settlements. In February 1999 they were encouraged when a federal jury returned the first-ever verdict holding gun makers liable for damages caused by the use of their products in a crime. But as many more cities considered filing suits, the gun industry fought back with lobbying and launched preemptive strikes in state legislatures against future lawsuits.

Many of the lawsuits were dismissed. The gun industry enjoyed two victories in 2000 as judges dismissed suits brought by the cities of Philadelphia and Chicago. A judge in the Cook County Circuit Court dismissed Chicago's claim because Chicago had failed to prove that gun manufacturers were responsible for public costs resulting from criminal gun violence. Likewise, a Pennsylvania judge dismissed Philadelphia's lawsuit because under the Pennsylvania Uniform Firearms Act—for which the gun industry lobbied—the state of Pennsylvania has the sole authority to regulate the industry.

State and federal appellate courts have generally held in favor of gun manufacturers as well. The California Supreme Court, in Merrill v. Navegar, Inc., (2001), held that gun manufacturers cannot be held responsible when their products are used for criminal activity. The closely watched case stemmed from a 1993 shooting rampage in a San Francisco office tower that left eight people dead and six wounded.

The Third Circuit, in Camden v. Beretta, (2001), upheld the dismissal of a suit brought by Camden County, New Jersey accusing several gun manufacturers of creating a public nuisance and acting negligently in the distribution of handguns. The Third Circuit also upheld the dismissal in Philadelphia v. Beretta.

Over just the past few years we have seen some turnaround in this debate, and honest citizens are beginning to see some light. In District of Columbia v. Heller (2008), SCOTUS held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment.

Heller recognized a right to keep and bear arms in self-defense, which logically presupposes some legal right to self-defense. Justice Scalia writes of a "right to self-defense" in terms that raise it to constitutional stature. "That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."

The U.S. Supreme Court has set a date to hear another landmark civil liberties case that will determine whether 2A prohibits state and local governments from enacting stiff anti-gun laws. Oral arguments in the lawsuit, McDonald v. City of Chicago, will be held on the morning of March 2, 2010. A decision is expected by late June or early July. Even gun control advocates are predicting a win for gun owner rights.

The intent of the founders when “the right to bear arms” became an enumerated right, obviously, was to ensure an individual’s ability to protect life and property. The rights of the people should not be subject to the whims of those with little understanding of, or lack of regard for the history of our country.


[1] Nesbit, L. 1990. Gun Control Debate: You Decide. New York: Prometheus Books.

[2] Hook, D. Gun Control: The Continuing Debate. Washington: The Second Amendment Foundation, 1992. Out of print, available used only.

[3] Dolan, E., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts.


American Civil Liberties Union. 1996. The ACLU on Gun Control.

Dunlap, C. 1995. "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment." Tennessee Law Review 62.

Gottfried, T. 1993. Gun Control: Public Safety and the Right to Bear Arms. Millbrook Press.

Kopel, D., et al. 2003. Supreme Court Gun Cases. Phoenix, Ariz: Bloomfield Press.

Lock, P. 1999. Pervasive Illicit Small Arms Availability: A Global Threat. [PDF] Helsinki, Finland: European Institute for Crime Prevention and Control, Affiliated with the United Nations.

Lott, J. 2000. More Guns, Less Crime: Understanding Crime and Gun-Control Laws. 2d ed. Chicago: Univ. of Chicago Press.

McCoskey, W. 2002. "The Right of the People to Keep and Bear Arms Shall Not be Litigated Away." [PDF] Indiana Law Journal 77 (fall).

Zelman, A. et al. 2001. Death by "Gun Control": The Human Cost of Victim Disarmament. Hartford, Wis.: Mazel Freedom Press.

National Rifle Association Website.



Old NFO said...

Outstanding post! Thanks for the citations and links also!

Anonymous said...

I'd like to see an analysis of where and when restrictions on weapon ownership should begin and end. Those in favour of liberalising laws regarding owning and carrying weapons still seem quite comfortable with a complete ban on non-military ownership of certain classes of weapons, such as tactical nuclear weapons, to chose an extreme example. (Less extreme would be the ban on hand grenades or machine guns--real machine guns, not assault rifles--about which I hear very few complaints.)

So is everyone, from those wanting to outlaw ownership of all guns to the most extreme NRA supporters, in agreement that there should be a line drawn, and merely disagreeing about where that line should be drawn? Or is there a qualitative difference here that I'm missing?

As we discuss this, by the way, let's try not to get distracted by the fact that, if we're looking at harm done by weapons, the current laws are inconsistent when considering how much harm any particular weapon causes in various situations. (E.g., it may well be the case that semi-auto-only assault rifles with full-jacket ammunition are less dangerous than perfectly legal larger calibre rifles firing expanding ammunition.) I'm not saying that our current classifications are correct, but that, in a larger sense, even the NRA-types seem to accept some sort of classification of weapons, despite disagreeing on the details of how to do so.

Mule Breath said...

The true libertarian would conclude that ownership of anything... weapon or otherwise... so long as no others are harmed... is a right. A strict constructionist constitutional position would be that any laws restricting weapon ownership would be unconstitutional.

Although I'd disagree that all those in favor of untying the knots accept all forms of control, you are correct that most citizens seem to accept some varying limits on the right to bear arms. Such an analysis as you propose would be interesting.

I'll bet, however, that the bar established by such a study would be far higher than the gun control advocates would find comfortable.

Anonymous said...

I have no problems with the true libertarian position, so long as nobody's harmed. But the issue there is that, once the harm has been done, it's often impossible to undo. (Owning a bomb is ok, but once I accidentally nuke my neighbourhood it becomes retroactively no longer ok, with an essentially unfixable result. A less extreme and, for today, far more relevant example would be that anybody should be allowed to carry anything on an airplane so long as they don't harm anyone with it.) This is why we control things.

(Note that I don't see someone declaring that playing with nukes is not a valid "hobby" as being any different from someone saying target range practice is not a valid hobby, or stamp collecting is not a valid hobby. Each of these is an unnecessary bore to someone out there.)

Just getting as far as that, where the advocates of less control (we really need some short, neutral terms for the two "sides" of this) also admit that they agree with weapons restrictions to some degree (which I think that many advocates of less control sincerely do--surely not everybody who agrees with mandating some training before owning a weapon is not just doing so as a political expediency) might at least help move the debate to where we draw the line, rather than the tendency toward hard pro/anti stances that we have now.