Right to Bear Arms Gun

¶ … Right to Bear Arms

Gun control became an issue for Americans in the 1960s when President Kennedy, Dr. Martin Luther King, and Senator Robert F. Kennedy were assassinated, all with guns. People began to demand that the government do something to stop the spread of guns and murder (Ruhl, Rizer, & Wier, 2003/2004). Since then, although a large segment of the population is in favor of more laws to regulate gun ownership, gun control is a hotly debated topic and more emotional than any other constitutional issue. After 9/11, for example, the sale of guns rose dramatically, as though people thought they could protect themselves against terrorism (an airplane flying into a building or disease germs planted in the water) by owning a gun (Kaminer, 2002). Currently, the number of guns in the United States is between 192 and 200 million (Ruhl, Rizer, & Wier, 2003/2004), and the country seems to be polarized on the issue.

Obviously, many people feel safer if they have a gun in the house or car "just in case" and would be extremely upset if the government tried to take away their "protection." On the other hand, whenever a highly publicized crime occurs -- the Columbine massacre, for example -- gun control advocates make new calls for better gun regulation. In this essay, I will argue that the right to bear arms is a protected right under the constitution and should not be taken away. Having said that, however, I will also argue that the government has a duty to see that guns do not fall into the hands of people who would use guns in an irresponsible manner -- such as convicted felons, mentally ill people, illegal aliens, and people under restraining orders for domestic violence. It is possible to preserve the right to bear arms while at the same time minimizing the danger of uncontrolled access to guns. I will discuss the history of how people have seen guns in relation to citizenship, the creation of the Second Amendment, and recent regulations that have been passed in regard to gun ownership. I will show that some gun legislation has been not only useless but also actually silly. I will argue the social problems that underlie homicide rates need to be addressed if we want to reduce the incidence of murder. Finally, some gun regulations do make sense.

Guns and Citizenship

In the history of the world, democracy first occurred in ancient Athens around 330 years B.C. Aristotle wrote at that time about the characteristics of citizenship as determined by the constitution. By the word constitution he did not mean a written outline of rights and responsibilities, which could be amended, as we use the word today. He meant "a society's fundamental ethical understanding" about who qualifies as a full citizen with "a right to have rights" (Stell, 2001). Stell argues, "For Aristotle, you can tell who the citizens are by the rights they bear -- the right to participate in political affairs, to hold public offices of trust, to own land, and to possess arms. Taken together, these rights constitute full citizenship" (p. 29). It follows, then, that if any of these rights are taken away, citizenship is diminished. The right to keep a gun was one of the rights that constituted citizenship, and losing that right would mean one was no longer a full citizen. Kaminer (2002) argues that just because some people abuse their right to bear arms is no reason to deprive everyone of the right to keep a gun. To extend Aristotle's argument, it would mean depriving everyone of full citizenship.

Gun Control

In the United States, the federal government took its first interest in controlling weapons during the 1920s and 30s when organized crime and gangsters came onto the scene. Prior to that, states did their own regulating. The government responded to gangsters like Al Capone by passing the National Firearms Act of 1934. It didn't actually ban machine guns or certain types of shotguns and rifles (deemed attractive to criminals) but placed a prohibitive tax of $200 and a registration requirement on them upon transfer to a new owner. Along with the tax money, the owner of a "Class III weapon" was required to fill out an application and submit it with a photograph and fingerprints. This was the first time the government passed comprehensive legislation to control guns.

The violence of the civil rights movement and subsequent assassinations during the 1960s caused people to demand that the government pass new legislation, the Gun Control Act of 1968. This act made it illegal to possess a stolen gun or to use fake identification when buying a gun. It outlawed convicted felons from owning a firearm as well as anyone dishonorably discharged from the military, mentally incompetent, illegally in the United States, or having renounced American citizenship. The new law made it illegal to change the serial number on a gun or to ship a gun without telling the post office what it was. It banned importing foreign surplus military weapons, which were flooding the market during the 1950s and 60s. They were comparable in quality to American-made but only about 1/10th the price (because of this, the American gun industry supported the Act). Gun dealers were required to keep records, and the government was authorized to inspect a gun dealer's business place. A prison term of five years, a fine of $5,000, or both, was the consequence of violation.

During the same era, organized groups for gun control emerged. Handgun Control Inc. was the first. Mark Borinsky founded the group after he was robbed at gunpoint in 1974. Outraged, he went to Washington, D.C. To join a gun control lobby and discovered that none existed. So he formed the organization. Later, John Hinkley, a would-be assassin, shot President Reagan. President Reagan recovered, but his bodyguard Jim Brady took a bullet in his brain that left him with permanent and serious disabilities. His wife Sarah Brady took over the group, which was later re-named the Brady Center to Prevent Gun Violence. Another influential group is the Coalition to Stop Gun Violence comprised of forty-four religious, labor, medical, educational, and civic groups. Originally, it was called the National Coalition to Ban Handguns, founded by the Society of the Methodist Church and the Board of Church. The group's presence federally is small, but makes a strong anti-gun lobby at the state level. A splinter group of the Coalition is the Violence Policy Center that does research.

Naturally, these groups do not exist unopposed. In 1975 the National Rifle Association expanded its traditional activities (marksmanship training and hunter education) and formed the Institute for Legislative Action (ILA), which keeps abreast of legislative action related to guns and organizes political activities. In 1990 the NRA created the NRA Foundation to "support...a wide range of firearm-related public interest activities of the National Rifle Association of America and other organizations that defend and foster the Second Amendment rights of all law-abiding Americans" (cited in Ruhl, Rizer, & Wier, 2003/2004, p. 19).

Inevitably, the two sides clashed and what happened was disgraceful. In 1981 NBC did a story about "cop-killer" bullets. Actually, the bullets were developed for the use of law enforcement officers and never intended to kill cops. They were designed to improve penetration and coated with Teflon. Unfortunately, however, testing proved them to be inappropriate for police use. Not only did they penetrate cars, but they also blasted all the way though the other side of the car, ricocheted around and caused havoc. They had already been discontinued when the NBC reported on them as "cop-killers." Immediately, the forces for gun control denounced them, and the NRA denounced a ban on them or any ammunition. Eventually the legislature passed a bill in 1986 that banned manufacturing or importing certain kinds of handgun bullets. You could say that the legislation addressed a problem that never existed.

The same year that law was passed, a new controversy arose about plastic pistols. A series of newspaper columns appeared about a new Austrian pistol -- the Glock 17 -- in which it was claimed that the gun was made entirely of plastic and could evade metal detectors. An unnamed government official was supposed to have smuggled one through airport security, and Libyan dictator Muammar Qaddafi was supposed to have arranged to purchase 100 of them. None of it was true. Metal detectors can easily spot Glock 17s. It has a plastic frame, but the barrel, slide and rail are steel -- 19 ounces of steel, in fact, and it is just as detectable as any other pistol. The Glock Corporation reported that it never intended ship any pistols to Qaddafi, and it never has. However, the myth grew. Other reporters said technology to produce plastic pistols was less than a year away and such guns could be taken aboard airplanes in a carry-on. This triggered legislation. In 1987 Senator Howard Metzenbaum introduced a bill to ban pistols with less than 8.5 ounces of steel in them. The bill did not pass, but eventually a compromise bill went through requiring all handguns to have at least 3.7 ounces of steel. No completely plastic gun has ever been produced, although guns with a plastic frame are popular because they weigh less. The legislation was unnecessary because, again, no problem existed. Apparently, the gun debate is not the place to look for facts.

The Brady Handgun Violence Prevention Act was passed in 1993, although it had been in the House of Representatives since 1988. Originally, it required a seven-day waiting period before a person could buy a handgun. This was to enable the dealer to perform a background check on the buyer. The two sides argued over the background check, but actually it was the waiting period that was the real bone of contention. Gun control groups wanted the waiting period whether a background check was conducted or not. Pro-gun groups were willing to take a background check as a substitute. The bill that finally passed had a 5-day waiting period during which dealers were to conduct a background check.

But when the National Instant Check System came online, making a background check nearly instant, the waiting period was eliminated (Ruhl, Rizer, & Wier, 2003/2004). In my opinion, eliminating the waiting period was unwise. A person who becomes enraged and decides to kill the offending party may cool off and reconsider during a five-day waiting period. Likewise, a person contemplating suicide, given time, could have a change of heart. A lot can happen in five days. Theoretically, a person's whole life could be turned around. If the object of gun control were to reduce homicide and suicide, it would make sense to keep the waiting period.

The Second Amendment

No serious discussion of the right to bear arms can occur without stating what the Second Amendment says. The Second Amendment is central to the debate, although a simple reading is not enough because there are three ways to interpret it, two that are commonly accepted and a third that has recently emerged.

The Second Amendment says, "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" (cited in Ruhl, Rizer, & Wier, 2003/2004, p. 26). People in favor of gun control interpret this to mean that the right to bear arms is a collective right and the constitution protects only those who bear arms in the course of military service. People in favor of gun rights interpret the right to bear arms as an individual right and a constitutionally protected fundamental right of all American citizens.

Part of the problem in interpreting the Second Amendment is the use of old English. Does the first clause ("A well regulated Militia, being necessary to the security of a free State...") place a limitation on the clause that follows it? In that case it could mean only guns in the hands of military personnel are protected, and other weapons are not. But there are some compelling arguments that this is not what the founding fathers meant at all. First, is the use of the word militia, which meant something different in the 1700s than it means now. The word is the source of major disagreement. Who was it meant to protect against the federal government -- the states or individuals? In 1792, the militia included every able-bodied male of military age and was often used in documents to mean "the whole body of the people." Some people argue that the National Guard is the "militia" the Constitution is talking about, but this is not so because the founders would have considered the National Guard a select militia, not a general militia, and anyway it didn't exist until the 20th century. Moreover, the militia of the 1790s was an unorganized militia. It was all the able-bodied men who could come to the aid of their country in time of need. They were supposed to bring their guns with them. This interpretation is supported by the original wording of the Second Amendment by James Madison, eventually changed in the final version: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person" (cited in Ruhl, Wizer, & Wier, 2003/2004, p. 29). This definitely implies they were thinking of it as an individual right. Another contentious issue is what was meant by the phrase "the people." Gun advocates interpret the people as the states. According to their interpretation, the states has the right to raise a militia and its right to bear arms is protected. In all the other Amendments of the Constitution where the rights of the people are discussed, the rights are individual rights, not collective, and if the Constitution meant to confer the right to bear arms on States, it would have said States instead of the people.

Gun control advocates sometimes argue that technology has made the Second Amendment obsolete. Advances in weaponry have produced tanks, explosives, long and short-range missiles and atomic bombs. They argue that the founders never thought of these things when they wrote the right to bear arms into the constitution (Lafollette, 2001). However, if you look closely at the meaning of the word bear, it means to carry.

The word arms means ordnance, which does not include things like cannons, tanks, bombs, etc., nor can any of these things be carried by an individual.

The Second Amendment, therefore, protects only those weapons that are "functionally equivalent to those commonly in use in the 1700s" (Ruhl, Wizer, & Wier, 2003/2004, p. 29) such as shotguns, rifles, and handguns.

Cornell & DeDino (2004) present a third interpretation of the Second Amendment, and suggest that it may be time now to abandon the individual and collective rights arguments and adopt a more holistic interpretation. In this view, the Second Amendment is not about private rights of individuals, nor about collective right of the states to keep armed militia. In the new view, the Second Amendment outlines a civic right. "The right to bear arms is one exercised by citizens, not individuals (an important distinction in the Founding Era), who act together in a collective manner, for a distinctly public purpose: participation in a well regulated militia" (p. 488). They argue that this interpretation fits better what is actually said.

Cornell & DeDino (2004) argue that in the 1700s bearing arms was seen as a civic duty. The close connection between rights and duties was central to the Founders' thought. The night before the Revolution began, a minister named John Zubly said in a sermon he preached to the Provincial Congress of Georgia, the "well regulated liberty of individuals is the natural offspring of laws, which prudentially regulate the rights of whole communities." He added, "...all liberty which is not regulated by law is a delusive phantom" (cited in Cornell & DeDino, 2004, p. 489). This concept of liberty as resting upon obedience to law and regulation was central to the thought of the founding fathers, particularly as they conceived the right to bear arms. During their time, the militia was a perfect example of this conception. Each individual "had a responsibility to help secure the collective rights of all by sacrificing some measure of their liberty to participate in a well regulated militia" (p. 490). This interpretation of the Constitution upholds the citizen's right to bear arms, not to protect his right to self-defense, but to protect against the government disarming the militia. The right to self-defense was already protected by common law. At the same time, the new interpretation acknowledges the need to preserve law and order and the expectation that citizens will use guns responsibly and submit to gun regulations.

The law at that time recognized a difference between bearing guns for personal use and bearing arms for the common defense. For example, James Madison proposed a law to prohibit a man from taking a gun off his own property to kill a deer, the penalty being that he would forfeit the deer, pay a fine, and be "bound to...good behavior." States clearly kept their right to regulate the use of firearms and differentiated between military use and personal use (Cornell & DeDino, 2004). All of this Henretta (2004) agrees with, but he carries the interpretation a step farther and claims historical evidence shows early Americans also assumed that the constitution offered "protection to law-abiding citizens to own and use guns" (p. 34).

State laws were already on the books when the Second Amendment was written. These laws show how the idea of bearing arms fits into the idea of a well regulated society governed by law. Justices of the peace, sheriffs, and constables were empowered to disarm people that rode about "armed in terror of the peace" (p. 496). It was up to the states to settle criminal matters like how to protect public safety -- how guns should be stored, when guns could be used recreationally, and where citizens could hunt. In order to insure security for the community, several states confiscated guns when the owners refused to swear an oath of loyalty. "If one simply looks at the gun laws adopted in the founding Era and early Republic, the evidence for robust regulation is extensive" (p. 497).