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A Well Regulated Militia Being

The battle over gun control has been nothing less than a rollercoaster ride through history. It has been a prolonged heated debate between citizens’ rights to protect themselves and private ownership or government’s power to maintain order of a militia and prevent crime. The severity of gun control follows the path of events in society. For example, gun control heightened after the assassinations of John F. Kennedy and Martin Luther King Jr. Political trends also drive the path of gun control as lobbyist organizations play an increasing role in the Federal Government. A piece of America’s history can be told through the court cases and legislation involving gun control.

The American Revolutionary War heightened the need for private gun ownership and further solidified gun control as a recurring issue is American history. The Battles of Lexington and Concord occurred on April 17, 1775, British forces advanced into the two towns attempting to raid and take away the colonists’ weapons. Minutemen, or militia, fought of the British, and won, securing their position as a prominent force. These battles would later influence the U.S. Constitution and American ideals. "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" (Second Amendment: Constitution). The 2nd Amendment to the U.S. Constitution was ratified in 1791. The interpretations of those few words lead to the intense debates over individual rights or collective rights. Individual rights advocates interpret the amendment as the right to bear arms an individual right and collective rights advocates interpret it as the governemnt’s right to regulate. The battle of Gun Control between gun rights activists and pro gun activists dates back to as early as America’s beginnings, the colonial era. Colonies such as New Plymouth and Massachusetts Bay Colony make a point to incorporate both the right to bear arms as a necessity for protection and restrictions of gun ownership rights to slaves and Native Americans in the colonial constitutions. For Example, in the 1632 statue of Plymouth Colony, “every freeman or other inhabitant of this colony provide for himself and each under him able to beare armes a sufficient musket and other serviceable piece for war with bandaleroes and other appurtenances” (Brigham). Colonial governments realized the need for a means of protection against foreign invaders including the Native Americans has the right to bear arms, where as collective right activists argue the “well regulated militia” as pertaining to the federal government’s duty to uphold a militia and therefore uphold and control the weapons. Thus individual citizens lose the rights to bear arms. These debates have become controversial because of the gun culture in America. The Founding Fathers believed that a self-sufficient army, private firearms, was the best protection of personal liberty and defense against the excessive powers of the Government (LaPierre). The people embraced their right to bear arms, it was common for every household and even every man to own and carry a firearm. Because the “firearms were seen as an insurance policy against American Indians, the British or French, and even against our own central government” (Froman). This tradition was unchallenged up until the court case Bliss V. Commonwealth in 1822. In which Bliss was convicted of breaking Kentucky legislature which says that “to prevent persons in this commonwealth from wearing concealed arms” (Amendment II). Bliss was found guilty of carrying a concealed sword in a cane. The case did not specifically involve firearms, but his right to bear arms and conceal them. Bliss appealed to the court being that the indictment on which he was guilty is incompatible the twenty third section of the tenth article of the Kentucky Constitution. That section provides, “that the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned"(Bliss v. Commonwealth). In other words, it is an individual right for citizens to bear arms. The courts found the original ruling to be unconstitutional and ruled in favor of Bliss with only one dissenting judge. The three rulings of the court were the right of the citizens to bear arms must be preserved, all acts of legislature that in any way impair or demesne it are null and void, and the act of preventing persons from concealment of weapons in unconstitutional. Bliss V. Commonwealth was the first court case to support the second amendment (Bliss V. Commonwealth). The later court case State V. Buzzard is in relation to Bliss V. Commonwealth. The only difference was the original ruling. The high courts of Arkansas rejected a case challenging the legal concealment of a weapon. Buzzard had been indicted on charges of violating the 13th section of the Legislature which prohibits “any person wearing a pistol, dirk, or sword concealed under the penalties of fine and imprisonment” (The State v. Buzzard). Arkansas Courts ruled against the statute and in favor of Buzzard by upholding the 21st section of the second article of the Arkansas Constitution which states “that free white men shall have the right to bear arms for their common defense.” In the superior power of the state constitution over legislature, the 13th section was found unconstitutional and void. The dissenting judge clearly shows the oppositions opinion when he states:

That the words “a well regulated militia being necessary for the security of a free State”, and the words “common defense” clearly show the true intent and meaning of the Constitution and prove that it is a political and not an individual right, and, of course that the State, in her legislative capacity, has the right to regulate and control it. (Right to Keep Arms)

In this case the judge states that it is clearly the states power to control firearms, however the majority rule of the court took a militia based interpretation. Earl Kruschke, a political scientist, classified as both the Bliss and Buzzard cases as demonstrating the individual rights view interpretation of the second amendment (Seconds Amendment). The next major court cases involving gun control was United States v. Cruikshank in 1876. The importance being this was the Supreme Court’s first chance to interpret the 2nd amendment, but the case involved interpretation of the 14th amendment, and how the Bill of Rights should be applied to state governments. On April 13, 1873 republican freed slaves were attacked by a small armed militia of Klansman to secure the Democratic takeover. Some of the black freedmen where armed and an estimated 200-300 people died that day in front of the courthouse. Members of the militia were indicted under the Enforcement Act of 1870: indicted for 32 counts of conspiring to deny African Americans the right to assemble, vote, as well as “the 'right to keep and bear arms for a lawful purpose.” The Supreme Court ruled found the charges faulty. They ruled that the second amendment “has no other effect than to restrict the powers of national government” (Library of Congress). The more important rulings came from the Supreme Courts interpretations of the Enforcement Act and the 14th amendment and how they should be applied to the states. The Enforcement Act was designed to protect black freedmen’s rights to life, liberty, and property from various groups such as the Ku Klux Klan. But the court found that the Due Process and Equal Protection Clauses could only be enforced on state actions, and not the actions of individuals. The 14th amendment prohibits states from depriving individuals of certain rights but does not incorporate issues of rights between individuals. This case further adds to the controversies in the Bill of Rights and Second Amendment. How does one amendment, the 14th, restrict actions of the states to infringe upon the rights of individuals while the 2nd amendment only restricts the federal government’s involvement and allows states to regulate firearms (United States v. Cruikshank). This ruling was later upheld in the court case Presser v. Illinois of 1886. Herman Presser was found guilty of assembling a group of armed men who then paraded around a city in Illinois. He claimed that the indictment violated his Constitutional rights including the Second Amendment. Simply the court ruled in favor of state law, allowing Illinois to regulate its “military bodies,” and that the Second Amendment only restricted the federal government. More important was the court in dicta, the court’s opinion, it stated:

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. (Presser v. Illinois)

The Presser court expressed that the states are prohibited from disarming its citizens because it intervened with the federal government’s right to reserve a military and militia under Article I of the Constitution. It seems as if the Supreme Court is in favor of citizen’s right to bear arms (Kopel). The apex of Gun Control court cases took place in the year of 1939 involving two men Frank Layton and Jack Miller in U.S. v. Miller. Both men were charged with violating the National Firearms Act of 1934. This act regulated the transfer of various weapons and required those same weapons to be registered. The two men had transported a 12-gauge shotgun in interstate commerce, and they argued that the National Firearms Act (NFA) violates their Second Amendment Rights. So the question was raised, does the Second Amendment protect the individual’s rights to own and bear arms? The Miller Court argued that the shotgun he possessed was protected by the Second Amendment because it could contribute to the efficiency and effectiveness of a well regulated militia. “The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia” (Gun Cite). The Court ruled that it was not of ordinary military equipment. The Supreme Court had taken a “collective rights” view on the case and ruled against Miller. Thus, reversing the ruling of the district court, of an individual’s right to bear arms, because the sawed off shotgun does not have “reasonable relationship” to contribute to a militia and the Second Amendment does not protect that specific firearm. In essence, the Supreme Court ruled that it is not the individual’s right to bear arms (Gun Control).

The timeline of court cases throughout history guide the development of Gun control and the Constitutionality of the 2nd amendment. The second amendment has been established as a right that can’t be infringed upon by the federal government, but basically the states governments do have the right to regulate gun ownership and the right to bear arms. The power of states to regulate firearms opens a gateway not only to more federal issues involving firearms but now individual states issues. It seems the cycle will continue to compound and become more complex.

Early Gun Control Legislation

The Various Court Cases both involving the Supreme Court and other lower courts have now somewhat defined the Second Amendment and policies of firearm regulation among states. This allowed organizations to lobby government and pass gun control legislation during the 20th century. The Sullivan Act began the trend of firearms registration and licensing, only to be heightened by historical events. Making it a felony, in New York, to complete any transaction involving firearms without a permit. With direct correlation to the Valentine’s Day Massacre, the National Firearms Act was passed in 1934 (Lott). The NFA imposes a tax on the manufacture and transfer of specific weapons and authorizes the registration of each firearm must be completed through the federal NFA registry. Attorney General Homer S. Cummings created the NFA on the basis that he could not totally ban firearms under the Second Amendment. So he created an expensive system of taxes and registrations to heavily regulate firearms. The NFA classifies five categories of regulated firearms: Machine Guns, a gun that can fire more than one bullet per trigger pull, Short barreled rifle that have a barrel shorter than sixteen inches, Short barreled shotguns, same in terms to rifles but barrels must be at least eighteen inches long, Suppressors, a device used to dampen the report of a firearm, Destructive Devices, such as grenades and grenade launchers or other explosives. The NFA set legislation for firearms regulation but the Bureau of Alcohol, Firearms, and Explosives (ATF) is responsible of registration and regulation. The Bureau issues Federal Firearms Licenses to merchants, and inspects the license. The process of registration and licensing varies from state to state. NFA regulated interstate commerce of firearms, so Congress then passed the Federal Firearms Act of 1938 to enforce the federal regulations and licensing of the NFA (ATF Online).

Gun Control then took a backseat to other social and national issues including World War II and the Cold War. Just as gun control dissipated to more important issues, it was resurrected by the recent rise in gun violence. The assassinations of John F. Kennedy, Martin Luther King Jr., and Robert Kennedy caused great pushes for stricter gun control legislation. The Gun Control Act of 1968 was a direct result of these efforts. It extended license requirement to more dealers, detailed records were required to be on file , handgun sales across state lines were restricted, dealers were now prohibited to sell firearms to convicted felons, mentally retarded, and drug abusers(LaPierre). It further restricted rifle and shotgun sales, and outlawed mail order sales of all firearms. Following the Gun Control Act was the Law Enforcement Officers Protection Act and the Firearms Owner’s Protection Act. The LEOPA didn’t try to outlaw firearms, but instead it set restrictions on ammunition. It made it illegal for companies or individuals to make or import armor piercing rounds capable of piercing bullet proof material. While the LEOPA further heightened gun control laws the FOPA made them less strict. It lowered restrictions on gun sellers and the sale of certain firearms (ATF Online).

Lobbyist Organizations

Trends in history show that gun to violence leads to a rise in gun control legislation. Lobbyists seem to be reactive rather than proactive. Lobbyist organizations have taken the lead role in government influence. The people can join together and voice their word under a unified opinion. The National Rifle Association and Gun Owners of America are pro gun rights organizations and the Coalition to Stop Gun Violence is an pro gun control organization as well as the Brady Campaign is. The National Rifle Association has been one of the most influential lobbyists throughout history even though it began as an organization to train soldiers better combat techniques with rifles. It has many connections with Congress, involvement with multiple bills, and revolving door employees (NRA). The main argument of the NRA is that the Second Amendment guarantees the right to bear arms as an individualistic right. They oppose legislation and other measures that inhibit that right. Although, they are not as radical as other organizations such as the Gun Owners of America. It has supported restriction of gun rights to criminals but at the same time opposing gun control towards lawful citizens, the GOA believes that any gun restriction is an infringement upon the second amendment whether it is a criminal or not. Gun rights lobbyists use various tactics and statistics to argue the essential need of individual’s rights to bear arms. Based on survey data from a 2000 study published in the Journal of Quantitative Criminology, U.S. civilians use guns to defend themselves and others from crime at least 989,883 times per year. (Agresti). A 1982 survey of male felons in 11 state prisons dispersed across the U.S. found: 34% had been "scared off, shot at, wounded, or captured by an armed victim,”40% had decided not to commit a crime because they "knew or believed that the victim was carrying a gun,” 69% personally knew other criminals who had been "scared off, shot at, wounded, or captured by an armed victim (Agresti). Using similar statistics gun rights activist make a valid point for private rights to firearms. The NRA also uses statistics from various case studies in cities around the United States. Washington D.C. City Council, in 1976, passed a law requiring that privately owned guns must be kept unloaded and rendered unavailable by means of a trigger lock. This law was ruled unconstitutional in 2008 by the Supreme Court decision of U.S. v. Heller. During 30 years of the laws reign, murder rates in D.C. skyrocketed at an averaged 73% increase. After the law was revoked the murder rates decreased back down to the levels it was at before the law was in effect (Agresti).The NRA has been influential in many debates on bills and even presidential elections. The NRA emerged in the 1980’s presidential election, backing Ronald Reagan over Jimmy Carter. Reagan received the California Rifle and Pistol Association Outstanding Public Service Award and Carter had appointed a advocate of gun control as a federal judge who supported a bill to close 40 million acres in Alaska to hunting (Lott). NRA’s expenditures on lobby have continuously risen to about 3 million dollars a year since 2000 (Summary).

The Coalition to Stop Gun Violence and the Brady Campaign are the “NRAs” of gun control lobbyists. The Handgun Control Inc. formed a coalition with the National Coalition to Ban Handguns to form the CSGV. Membership of these organizations seems to spike after historic events. In its early years the organization contributed around $75,000 to congressional campaigns. After the assassination attempt on Reagan, James and Sarah Brady joined the movement and renamed the organization to the Brady Campaign to Prevent Gun Violence. The Brady Campaign has held its position as most influential gun control lobbyists since its formation contributing anywhere from $500,000 to 2 million dollars in lobbying funds(Summary). The Brady Campaign has played a role in recent politics including the Assault Weapons Ban and the Brady Bill. Just as the NRA does, the Brady Campaign also backs their arguments with societal trends, as well as ad hominem arguments and debates involving pathos, they try to emotionally move the audience.  Roughly 16,272 murders were committed in the United States during 2008. Of these, about 10,886 or 67% were committed with firearms (Agresti). They argue that gun control laws will dramatically decrease the number of gun violence and crime all together. Background Checks have resulted in 681,000 denials and multiple arrests during a 10 year period. In 1982 Chicago enacted a handgun ban barring civilians to possess a gun unless it was registered before the law was in effect. Since the law took place the average murder rate of Chicago has been 17% lower (Agresti). Both sides of the battle use statistics and lobbyist organizations at their disposal to influence the government. It will forever be an ongoing battle. The policies of gun control will change with the politics (Brady Campaign).

Current Gun Control Issues

1990-Present

Different types of legislature continue to pour in. The Crime Control Act on 1990 was a large act to heavily control juvenile crime. A part of the Crime Control Act was the Gun-Free School Zone act which was deemed unconstitutional under the Commerce Clause in the decision of Lopez v. United States in 1995. But the act was revised and then re-enacted and now is the Gun Free School Zones Act of 1995 (Salser).

The Brady Handgun Violence Prevention Act may is a major development in gun control in the past 20 years because handguns have been under fire, but most legislation involving handguns is found to be unconstitutional until the Brady Bill. This bill enacts a 5 day waiting period before any firearms transaction and allows dealers to perform federal background checks on all firearms purchasers. The bill went into effect February of 1994 and is named after James Brady, a man injured during the attempted assassination of Reagan and the founder of the Brady Campaign to Prevent Gun Violence. The Brady Bill is in direct relation to Jim Brady’s injuries sustained during the attempted assassination. All individuals wanting to purchase a firearm must be put through the National Instant Criminal Background System which is maintained by the FBI. It denies individuals the rights to firearm ownership under a battery of qualifications. Such as, if the person were dishonorably discharged from the military, has a criminal record, a drug abuser, has a mental illness, or is illegally in the country they would be denied a firearms license. The NRA’s strong opposition of the bill allowed it to play a part in the bill’s statutes. Although they were not able to totally eradicate the bill, by spending millions of dollars they were able to rid of the 5 day waiting period and replace it with an instant background check. The NRA believes the bill to be a severe threat to American sovereignty, thus it funded multiple lawsuits in multiple states trying to find the act unconstitutional (NRA). Since 1994 there has been approximately 2 million attempted firearm purchases were blocked 56% being convicted criminals, and the NCIS has accounted for over 100 million approvals (Aborn).

The Supreme Court Case, U.S. v. Heller played a major role in modern gun control by solving major issues but also creating some. The Heller case was based off a narrow question: Does the Second Amendment protect an individual right? Dick Heller, a security guard, had applied for a handgun permit but was denied due to the various handgun bans, storage laws, and gun control laws in D.C. D.C. established strict gun control laws in which all handguns are banned unless owned before the law was enacted under the grandfather clause, and all guns are illegal to transport whether they were purchased before or after the Handgun Ban. Finally, all weapons inside of private homes must be temporarily incapacitated by means of trigger locks. Heller argued that his second amendment rights were violated under the argument that the words “the People,” “Keep,” and “bear” were violated by the handgun ban established 32 years earlier by the D.C. Council. The 9th Circuit Court ruling took a collective rights view on the second amendment under the ruling of Silverira v. Lockyer; the 5th circuit court viewed the second amendment as an individual right in the case U.S. v. Emerson. “Such disharmony between sister courts creates an urgent issue requiring Supreme Court Intervention” (Smith). The Supreme Court was specifically driven to interpret the second amendment on if it was and individual right, collective right, or even sophisticated states right theory. The Supreme Court ruled in a 5-4 decision that the second amendment protects an individual right to bear arms not only for militia purposes, but also for privates uses such as self defense or target shooting. The dissenting opinion read by Justice John Paul Stevens stated that the second amendment right only protects the right to bear arms as a well-regulated militia and not for private use. The battle for gun control should now be over, the courts ruled that the second amendment protects an individual right, citizens have the right to privately own guns. But Washington D.C. is a federal enclave, run by federal law, and the second amendment had to power to reverse the federal ban of handguns in D.C. because it protects citizens from the federal government infringing upon their rights (Smith). The question now is not whether the second amendment is an individual right, but does it apply to state governments just as it does in D.C. under the 14th amendment. The answer is found in the decision in McDonald v. City of Chicago. Gun rights advocates challenged the restrictive handgun ban in Chicago as a violation to a fundamental right set by the Second Amendment. A day after the Heller decision petitions began to flood into the city of Chicago challenging the gun ban on arguments that the second amendment rights should apply to states under the Due Process Clause or Privileges and Immunities Clause.

McDonald’s lawsuits were shot down, he appealed to the Court of Appeals for the Seventh Circuit only to be denied once again. However the Appeals Court issued that this is a matter for Supreme Court Ruling, which led to the Supreme Court granting him certiorari. The decision of the court will not only affect the city of Chicago but all powers of states and local municipalities. McDonald argued that handguns are essential for the protection of the average citizen from violent crime. Chicago’s rebuttal stated that “incorporating the Second Amendment against the states would disrupt the balance between state and federal power” (Sweetie). Both sides argue absolute opinions. McDonald argues that both the Due Process and Privileges and Immunities Clause incorporate the second amendment in state governments while the city of Chicago disagrees. The Supreme Court sided with McDonald with a vote of 5 to 4. It overturned the ruling of the Seventh circuit Court holding that the “Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states” (Sweetie). Justice Samuel Alito delivered the court’s opinion. The rights protected by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and lawfully applied to the states by means of the 14th amendment (Sweetie).

The Second Amendment to the United States Constitution may be the most debated amendment. Back and forth the gun rights advocates continue to fight the gun control advocates. Gun control advocates contribute to their cause through legislation while gun rights advocates contribute through court cases challenging the legislation. The history of gun control creates a timeline; from that timeline we can see rises in violence in America or whether the political body of the government is more liberal or conservative. Forever changing will the gun control debate continue to be.

History of Gun Control

In America

By: Patrick Reynolds

4/13/11

Mr. Smith

1st Block


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