Gun Control in the 21st Term Paper
- Length: 15 pages
- Sources: 5
- Subject: Law - Constitutional Law
- Type: Term Paper
- Paper: #51492225
Excerpt from Term Paper :
Hence, while ratifying the U.S. Constitution, the Virginia convention passed a resolution specifying: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state;"
It is, therefore, clear that the central issue that led to the adoption of the Second Amendment, as part of the Bill of Rights -- ratified in 1791, was the concern that the powers granted in the U.S. Constitution to the Congress over the militia and a national army may be used to abrogate state sovereignty and power, rather than a desire to recognize the right for bearing arms by individual citizens. Nowhere in the background and history of the introduction of the Second Amendment in the U.S. Constitution do we find the issue of personal use of weapons, for purposes such as hunting, sporting, recreation, or even personal protection as contended by opponents of gun control such as the NRA. And the Second Amendment's recognition of "the right of the people to keep and bear Arms" was mainly for the purpose of maintaining "a well-regulated Militia."
Changing Role of the Militia in U.S. History
Having established that the right to bear arms granted in the 2nd Amendment was mainly meant for the Militia, let us examine how the militia's role has changed subsequently.
The first federal law passed by the Congress was the Uniform Militia Act of 1792. The Act defined the U.S. militia as, "every free able-bodied white male citizen of the respective states between the ages of eighteen and forty-five" and obligated the militiamen to provide their own weapons, ammunition, and accoutrements. This provision was necessary at the time as the federal government did not have the resources to provide arms itself; it also explains why the Second Amendment had provided for the right to bear arms by the people. All fifteen states in the Union soon passed laws to regulate their militia in accordance with the federal guidelines.
The strength as well as the weakness of the militia system was soon brought out by certain events that followed. Militia forces were instrumental in winning of some key battles with Indians in 1794, and the Whiskey Rebellion in the same year was successfully suppressed by a militia force. On the other hand, again in 1794, there was a serious face-off between Georgia militiamen and federal troops in a dispute over the treatment of Creek and Cherokee Indians. A dispute over the Alien and Sedition Acts of 1798 nearly precipitated a similar encounter between federal troops and the Virginia militia in 1798 (Ibid. 28).
The militia system gradually degenerated as most states failed to implement the terms of the Uniform Militia Act and it became increasingly difficult to persuade the men eligible for militia membership to arm themselves and to show up for training and drills. By the end of the eighteenth century, it was clear that a universal citizen-militia system was impractical and obsolete and the government began to rely more and more on its professional army and an elite corps of volunteers, called the select (later "organized") militias. The reputation of citizen militias suffered a further crippling blow as a result of their dismal performance in the War of 1812 with the British and its remaining colonies in North America.
The Militia Act of 1903 legally separated the "organized militia" from the unorganized "reserve militia" and renamed it as the National Guard. From then onwards, the reserve citizen-militia has become practically extinct although the Congress still has the legal powers to call upon "all able-bodied men" between the ages of 17 to 45 for military duty. However, in the modern era, the regular U.S. Army and the National Guards are usually adequate to perform such duty in normal times. In exceptional circumstances, e.g., a widespread war such as the Second World War and the Vietnam War, the military draft rather than a militia has been used to meet the needs of military service.
It can thus be argued that the Second Amendment and its provision of "the right of the people to keep and bear Arms" become valid only when the federal government uses its powers to call up the reserve militia. This has not happened in the modern times after the Civil War and is not likely to happen in the foreseeable future.
Supreme Court's Interpretation of the Second Amendment
Whenever there is controversy over the interpretation of a Constitutional provision, the Supreme Court's ruling is sought. Unfortunately, the U.S. Supreme Court's rulings on the Second Amendment have been few and far between and it has consistently refused to address the issue in recent times. However, most of the Supreme Court decisions regarding the right to bear arms have tended to support the view that states can adopt gun control laws and the Second Amendment does not prevent them from doing so. ("The Second Amendment")
The first "Second Amendment" case that came up before the Supreme Court was U.S. v. Cruikshank, 92 U.S. 542 (1875), in which the defendants were charged with depriving blacks of their constitutional rights, including the right of firearms possession. The Court ruled that the Constitution did not grant the rights bearing arms; it merely prohibited Congress from infringing upon those rights and that the amendment has no other effect than to restrict the powers of the National Government. (Ibid)
In Presser v. Illinois, 116 U.S. 252 (1886), the Court ruled that an Illinois state law that barred paramilitary organizations from drilling or parading in cities or towns without a license from the governor was constitutional. By doing so, the Court reaffirmed that the Second Amendment did not apply to the states. In Miller v. Texas, 153 U.S. 535 (1894), the Court ruled that a Texas law prohibiting the carrying of dangerous weapons did not violate the Second Amendment and gave a similar decision in Robertson v. Baldwin, 165 U.S. 275 (1897).
All of the above-mentioned decisions, however, were given in the "pre-incorporation" era, i.e., the Supreme Court did not begin to extend parts of the Bill of Rights to the states, and opponents of gun-control laws disregard these old judgments of the Supreme Court.
The only post-incorporation U.S. Supreme Court ruling was given in U.S. v. Miller, 307 U.S. 174 (1939). In that case, the Court ruled unanimously that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the state militias ("The Second Amendment" -- Para on the Second Amendment in the Courts). In subsequent years, the Court has consistently refused to address the issue and routinely denies certiorari to almost all Second Amendment cases. In 1983, for example, it let stand a 7th Circuit decision upholding an ordinance in Morton Grove, Illinois, which banned possession of handguns within its borders (Ibid.). The Supreme Court again refused to review two cases in June 2002, when the Justice Department had filed briefs asserting that in its opinion the Second Amendment gives individuals the right to bear firearms.
The legal history of Second Amendment cases as narrated above, give further credence to the argument that the right to bear arms, mentioned in the Amendment, relates to militias; it is not an individual right, and does not apply to the states, which are free to pass gun control laws.
Does the Proliferation of Guns Promote Crime and Violence?
Apart from the purely legal aspect of the debate about gun control, i.e., whether the Second Amendment allows unfettered right to bear arms to all American citizens, supporters of gun control believe that the proliferation of guns in individual hands is responsible for increasing gun violence and an exploding crime rate in the country. Opponents of gun control vehemently contest this viewpoint: they believe that arms in the hands of ordinary people are, in fact, a deterrence to crimes and depriving them of these weapons would contribute to a greater crime rate since the criminals would be able to acquire weapons through illegal means, in any case.
The relationship between crime, violence, and gun ownership has become muddled mainly because of the extreme polarization of the gun control debate and the fact that almost everyone carries a pro-or con bias on the issue. It is also difficult to carry out effective research on the subject due to its complexity and practical difficulties such as the jurisdictional differences in the definition of crime.
Some writers, such as John Lott, author of More Guns, Less Crime, say that their research has revealed a positive correlation between gun control legislation and crimes. He is of the view that criminals ignore gun control laws and are effectively deterred only by the armed intended victims just as higher penalties deter crime ("An Interview with John Lott, Jr.," 1998). Other books such as Private Guns, Public Health, by David Hemenway hold the diametrically opposite…