Right To Bear Arms Gun Term Paper

Length: 9 pages Sources: 5 Subject: Law - Constitutional Law Type: Term Paper Paper: #38994870 Related Topics: Arms Control, Individual Rights, Civil Rights Movement, Property Rights
Excerpt from Term Paper :

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,...


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…

Sources Used in Documents:


Cornell, S. & DeDino, N. (2004). A well-regulated right: The early American origins of gun control. Fordham Law Review, 73 (2), 487-528.

Henretta, J.A. (2004). Collective responsibilities, private arms, and state regulations: Toward the original understanding. Fordham Law Review, 73 (2), 529-537.

Kaminer, W. (2002). Gun shy. American Prospect, 13 (2), 28-29.

Lafollette, H. (2001). Controlling guns. Criminal Justice Ethics, 20 (1), 34-39.

Cite this Document:

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