Gun Control Right to Bear Arms

Embedded into the express rights and freedoms of the United States Constitution and Bill of Rights is the right to bear arms. The Second Amendment states explicitly the purpose for its existence: "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." The Second Amendment is not, as may be commonly believed, uniquely American. As with many of America's legal institutions, the Second Amendment can be traced to English common law (Eichenwald, 2013). The Second Amendment was included in the Bill of Rights as a safeguard against unexpected government tyranny, to empower the people, and to permit the formation of militias to defend against common enemies.

However, the Second Amendment takes on new meaning in the age of the mass-produced handgun. The Second Amendment has also been interpreted anachronistically. When the Second Amendment was drafted, armament was generally bulky and slow-loading. Advancements in technologies have permitted small semi-automatics to enter the munitions market. Moreover, a black market of weapons has proliferated the possession of firearms in the United States. Furthermore, the language of the Second Amendment unequivocally advocates a "well regulated militia" and not the individual right to carry a weapon in public under the guise of needing self-defense.

Considering that altering the Amendment itself is unfeasible, there are two basic points-of-view regarding the Second Amendment. One is the "collective rights theory," and the other is the "individual right theory." The collective rights theory is the one generally espoused by Democrats. This point-of-view interprets the Second Amendment literally and encourages federal controls on firearms. The goal of the collective rights theory is to reduce gun violence while still protecting the rights and freedoms of Americans.

Republicans and Libertarians generally espouse the individual right theory. This view presumes that the Constitution allows for the personal armament of individuals for whatever reason they see fit, and disavows the right of the federal government to restrict gun manufacture, sales, distribution, ownership, and even usage.

The issues surrounding the Second Amendment are divisive, and have become increasingly so in the past few decades. Reasons for the shifts in public consciousness regarding gun control include increased gun violence and the emboldening of the National Rifle Association. Historically, Americans have tacitly supported federal regulation of guns. The first federal gun control law passed in 1934 as part of President Roosevelt's New Deal program. This law imposed taxes on guns and created the first national registry of gun ownership. The reasoning behind the law was to combat the proliferation of street level crime in the gangster era, and also allowed for the collection of federal moneys on the sale and distribution of guns. From this point, interstate gun sales were recorded and indicted violent criminals were prohibited from purchasing guns ("History of gun-control legislation," n.d.). Even earlier, gun control was believed to be a states' rights issue. In 1876 the Supreme Court ruled in United States v. Cruikshank that the Second Amendment "applied only to the federal government, leaving the states to regulate weapons as they saw fit," ("Second Amendment," n.d.). Gun control remained a part of American domestic policy throughout the 20th century, until the 1980s and the Reagan era. It was during this time that the NRA and the Republican Party teamed up in unprecedented ways, whereas the Democratic Party had remained traditionally in favor of reasonable gun control measures such as Johnson's Safe Streets Act of 1968.

Republican Stance: Overview

Republicans tend to use the individual right theory to support a liberal (meaning loose) interpretation of the Second Amendment. The Republican individual right theory argument encapsulated as "the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion," (Lunn & Winkler, n.d.). The Republican stance has been substantiated in recent Supreme Court cases like District of Columbia v. Heller in 2008, in which the Court "proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms," ("Second Amendment," n.d.). District of Columbia v. Heller essentially struck down a D.C. handgun ban as being "violative of that right," ("Second Amendment," n.d.). In another landmark case, the Supreme Court ruled in McDonald v. City of Chicago, in 2010, that the 14th Amendment substantiates the 2nd Amendment and overturned a Chicago citywide handgun ban.

Democrat Stance: Overview

The Democratic Party stance is based on the collective rights theory of the Second Amendment and supports various degrees of gun control at the federal level. Using this line of reasoning, "citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right," ("Second Amendment," n.d.). Moreover, the 2012 Democratic Party platform stated support for an "effective enforcement of existing laws, especially strengthening our background check system," ("Democratic Party on Gun Control," n.d.). The Democratic Party also supports other restrictions on individual gun ownership such as "reinstating the assault weapons ban and closing the gun show loophole -- so that guns do not fall into the hands of those irresponsible, law-breaking few," ("Democratic Party on Gun Control," n.d.).

Republican Stance: Recent History

"For decades now, the N.R.A. and the rest of the gun lobby have had a grip on the Republican Party," (Cassidy, 2015). Central to the Republican party (GOP) platform is the right to bear arms in the interest of "self-defense," which the Party also calls a "God-given" right (GOP, 2015). The GOP (2015) expressly believes in "the right to obtain and store ammunition without registration," as well as in "enabling Americans to defend their homes and communities," via firearms (GOP, 2015). The GOP (2015) opposes the "improper collection of firearms sales information in the four southern border states," (GOP, 2015). Generally, the Republican Party has become overtly and unabashedly pro-gun in a way that goes beyond even the language used in the Second Amendment. As a result, "Republicans own guns more than two-to-one over Democrats," (Hepler, n.d.).

According to a survey by munitions manufacturer Smith and Wesson, the top reason for gun ownership is personal safety/self-defense, outranking hunting, recreation/sport, and target shooting combined," (Hepler, n.d.). There is an ingrained belief that Americans are under constant threat from their neighbors, inspired in part by political and media rhetoric. During the Reagan era, the pro-gun rhetoric escalated to unprecedented levels. In the golden age of the NRA, its then-president Charlton Heston famously stated that the government would have to take his guns from his "cold, dead hands."

The Reagan administration oversaw several laws liberalizing gun ownership, sales, and distribution. For example, the Firearm Owners Protection Act of 1986 "limits the Bureau of Alcohol, Tobacco and Firearms from inspecting gun dealers more than once a year, with follow-up inspections allowed only if multiple violations are found," (History of Gun Control Legislation," 2012). Gun control became back in fashion during the Clinton administration, true to Democratic Party platform. Predictably, the Republican administration under George W. Bush oversaw a resurgence of pro-gun laws including the 2003 Tiahrt Amendment, which "prohibits law enforcement from publicly releasing data showing where criminals bought their firearms," ("History of Gun Control Lesiglation," 2012). In 2005, Bush passed the Protection of Lawful Commerce in Arms Act, which protects the manufacturers against lawsuits.

Current Republican candidates for the 2016 Presidential election are towing the party line on the Second Amendment. Reactions to school shootings range from insulting, such as when Ben Carson suggested that the victims' responses "had been inadequate," to dismissive, as when Jeb Bush simply said, "stuff happens," (Cassidy, 2015). Trump has said that the problem at Umpqua was that "no one on the scene, apart from the twenty-six-year-old shooter, was armed," and also said that he opposes a ban on assault weapons (Cassidy, 2015). Rubio appears to be the most moderate of all the Republican candidates on gun control, as he supports "reasonable restrictions" on gun sales, also supporting measures to "keep guns out of the hands of felons and the mentally ill," (Cassidy, 2015).

Democrat Stance: Recent History

Since Roosevelt's National Firearms Act of 1934, the Democratic Party has supported a more technically conservative interpretation of the Second Amendment, meaning that the Democratic Party favors gun control. For example, President Johnson's Omnibus Crime Control and Safe Streets Act of 1968 and Gun Control Act of 1968, became "the primary federal law regulating firearms," ("History of Gun Control Legislation," 2012). The Democratic Party platform is not anti-Second Amendment but it is based on the collective rights theory. The collective rights theory espoused by most Democrats has considerable historic precedent. At the Constitutional Convention, the framers eventually decided that the "federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia," meaning that they supported a federal standing army more than a loose coalition of disorganized militia (Lunn & Winkler, n.d.). The Democratic Party stance is based on the belief that "most Americans do not fear the nation's armed forces and virtually no one thinks that an armed populace could defeat those forces in battle," (Lunn & Winkler, n.d.). The strict interpretation of the Second Amendment as being mainly about a "well regulated militia" remains salient for Democrats.

In 1993, Democratic President Clinton signed the Brady Handgun Violence Prevention Act, which "mandates background checks of gun buyers in order to prevent sales to people prohibited under the 1968 legislation," (History of Gun Control Legislation," 2012). The Brady Act was momentous and created a new federal system, the National Instant Criminal Background Check System (NICS), maintained by the FBI. Opposed vehemently by the NRA and Republicans, the Brady Act was nevertheless constrained because "federal law prohibits the creation of a national registry of gun ownership," ("History of Gun Control Legislation," 2012). President Obama has repeatedly called for stricter gun laws in the wake of school shootings and accidental deaths related to guns in households. Current Democratic Party candidates for the 2016 election including Hilary Clinton continue to tow the party line in supporting a strict, ironically conservative, interpretation of the Second Amendment.

Hilary Clinton

Hilary Clinton has changed her stance on the Second Amendment and gun control over the course of the last several years. Running for Senator of New York, Clinton "centered on a push to keep guns off the streets, and she was a forceful advocate of creating a national gun registry," ("Hillary Clinton on Gun Control," n.d.). However, Clinton wanted to differentiate herself from her opponents when campaigning against Barack Obama in 2008. During the campaign, Clinton "boasted of duck hunting," accused Obama of "being weak on gun rights," and "talked of learning to shoot a gun as a child," (cited by Frizell, 2015). Perhaps to cull some centrist Democrat voters, perhaps members of the Democratic organization called Democrats for Gun Ownership, Clinton overtly supported the Second Amendment in her campaign. This is likely due to the fact that "gun owners remain a highly motivated voting bloc," (Frizell, 2015).

More recently, Clinton has reverted to a position strict on gun control. She has become an outspoken critic of the NRA and a vocal supporter of tight federal regulations on gun ownership. She claims "access to guns in the U.S. had grown 'way out of balance,'" (cited in "Hillary Clinton on Gun Control," n.d.). Part of the reason why Clinton has changed her stance is public opinion, which has shifted slightly toward tighter gun control laws and particularly background checks in recent years (Frizell, 2015). The increasing public support for gun control comes in the wake of school shootings and other mass shootings. Clinton also benefits from the support of newer organizations such as Everytown For Gun Safety, which is "bankrolled by billionaire Michael Bloomberg," (Frizell, 2015). Central to Clinton's argument is the need for tighter background check policies and increasing liability for gun manufacturers.

Personal Opinion

The Second Amendment has been misinterpreted, distorted, and misused. It was written into the Bill of Rights at a time when the greater concern of the people was defending against a tyrannical government. After all, when the Constitution was drafted, the nation was new and still fearful and mistrustful of centralized government. The anti-federalist movement fomented fear of the government, and continues to underwrite many conservative arguments now. However, there are several reasons why the Second Amendment should not be interpreted in the current way it has been interpreted, as being applicable to the right to carry handguns and other deadly weapons either concealed in public or openly.