The Right to Bear Arms: Gun Control and the Second Amendment

Introduction: Guns, Rights, and American Society

Gun control became a national issue in the 1960s when President Kennedy, Dr. Martin Luther King, and Senator Robert F. Kennedy were all assassinated with firearms. People began to demand that the government act to stop the spread of guns and murder (Ruhl, Rizer, & Wier, 2003/2004). Since then, although a large segment of the population favors more laws to regulate gun ownership, gun control has remained a hotly debated topic — arguably more emotional than any other constitutional issue. After 9/11, for example, gun sales rose dramatically, as though people believed they could protect themselves against terrorism by owning a firearm (Kaminer, 2002). Currently, the number of guns in the United States is estimated at between 192 and 200 million (Ruhl, Rizer, & Wier, 2003/2004), and the country remains deeply polarized on the issue.

Many people feel safer owning a gun and would strongly oppose any government attempt to remove their means of "protection." On the other hand, whenever a highly publicized tragedy occurs — the Columbine massacre, for example — gun control advocates renew their calls for stronger regulation. This essay argues that the right to bear arms is a protected constitutional right that should not be abolished. At the same time, it argues that the government has a duty to prevent guns from falling into the hands of people who would use them irresponsibly — such as convicted felons, the mentally ill, undocumented immigrants, and individuals under restraining orders for domestic violence. It is possible to preserve the right to bear arms while minimizing the danger of uncontrolled access to guns.

The essay discusses the historical relationship between gun ownership and citizenship, the creation of the Second Amendment, and recent regulations passed regarding gun ownership. It shows that some gun legislation has been not only ineffective but also fundamentally misguided. It argues that the social problems underlying homicide rates must be addressed if society genuinely wants to reduce the incidence of murder. Finally, it acknowledges that some gun regulations do make sense.

Guns and Citizenship

Democracy first appeared in ancient Athens around 330 B.C. At that time, Aristotle wrote about the characteristics of citizenship as determined by the constitution. By "constitution" he did not mean a written outline of rights and responsibilities that could be amended, as the word is used 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 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 full citizenship, and losing that right would mean one was no longer a complete citizen.

Kaminer (2002) argues that the fact that some people abuse their right to bear arms is no reason to deprive everyone of that right. To extend Aristotle's argument, doing so would mean depriving all citizens of their full standing as members of the political community.

The History of Gun Control Legislation

In the United States, the federal government first took an interest in controlling weapons during the 1920s and 1930s, when organized crime and gangsters emerged as a serious social problem. Before that period, individual states handled their own regulation. The government responded to figures like Al Capone by passing the National Firearms Act of 1934. It did not actually ban machine guns or certain types of shotguns and rifles deemed attractive to criminals, but instead placed a prohibitive $200 tax and a registration requirement on them upon transfer to a new owner. Along with the tax payment, the owner of a "Class III weapon" was required to complete an application and submit it with a photograph and fingerprints. This was the first time the federal government passed comprehensive legislation to control guns.

The violence of the civil rights movement and the political assassinations of the 1960s prompted further public demand for legislation, resulting in the Gun Control Act of 1968. This act made it illegal to possess a stolen gun or to use false identification when purchasing a firearm. It prohibited convicted felons from owning a firearm, as well as anyone dishonorably discharged from the military, adjudicated mentally incompetent, illegally present in the United States, or having renounced American citizenship. The law also made it illegal to alter the serial number on a gun or to ship a firearm without disclosing its contents. It banned importing foreign surplus military weapons, which had been flooding the market at roughly one-tenth the price of American-made equivalents during the 1950s and 1960s — a situation that led the American gun industry to support the Act. Gun dealers were required to keep records, and the government was authorized to inspect dealers' business premises. Violations carried a penalty of five years in prison, a $5,000 fine, or both.

During the same era, organized advocacy 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 his own organization. Later, would-be assassin John Hinckley shot President Reagan. Reagan recovered, but his press secretary Jim Brady sustained a brain injury that left him with permanent and serious disabilities. Brady's wife, Sarah Brady, subsequently took over the group, which was later renamed the Brady Center to Prevent Gun Violence. Another influential organization is the Coalition to Stop Gun Violence, comprising forty-four religious, labor, medical, educational, and civic groups. Originally called the National Coalition to Ban Handguns, it was founded by the Society of the Methodist Church and the Board of Church. The coalition's federal presence is limited, but it maintains a strong anti-gun lobbying presence at the state level. A splinter group, the Violence Policy Center, focuses on research.

These groups did not go 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 monitors legislative developments related to guns and coordinates 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, sometimes with results that were less than creditable. In 1981 NBC aired a story about so-called "cop-killer" bullets. In reality, the bullets had been developed for law enforcement use and were never intended to harm officers. They were designed for improved penetration and coated with Teflon. However, testing proved them inappropriate for police use: they not only penetrated vehicles but passed entirely through and ricocheted, causing additional damage. They had already been discontinued by the time NBC reported on them as "cop-killers." Gun control advocates immediately called for a ban, and the NRA just as immediately opposed any restriction on the ammunition. Eventually, in 1986, the legislature passed a bill banning the manufacture or importation of certain types of handgun bullets — legislation that addressed a problem that had, for all practical purposes, ceased to exist.

That same year a new controversy arose over plastic pistols. A series of newspaper columns appeared about a new Austrian pistol — the Glock 17 — claiming it was made entirely of plastic and could evade metal detectors. An unnamed government official was alleged to have smuggled one through airport security, and Libyan dictator Muammar Qaddafi was said to have arranged to purchase 100 of them. None of it was true. Metal detectors can easily detect Glock 17s. The pistol has a plastic frame, but its barrel, slide, and rail are steel — 19 ounces of steel — making it just as detectable as any other handgun. The Glock Corporation stated it never intended to ship pistols to Qaddafi and never did so. Nevertheless, the myth grew. Other reporters claimed that fully plastic pistols capable of defeating airport security were less than a year away from production. This prompted legislative action: in 1987 Senator Howard Metzenbaum introduced a bill to ban pistols containing less than 8.5 ounces of steel. The bill did not pass, but a compromise measure eventually required all handguns to contain at least 3.7 ounces of steel. No completely plastic gun has ever been produced, though pistols with plastic frames are popular because of their lighter weight. The legislation was unnecessary because, again, no genuine problem existed. The gun debate, it seems, is not always a reliable place to look for facts.

The Brady Handgun Violence Prevention Act was passed in 1993, although it had been before the House of Representatives since 1988. As originally proposed, it required a seven-day waiting period before a person could purchase a handgun, allowing the dealer time to conduct a background check. The two sides disagreed sharply over the background check provision, but the waiting period was the true bone of contention. Gun control groups wanted the waiting period regardless of whether a background check was conducted; pro-gun groups were willing to accept a background check as a substitute for the waiting period. The bill that ultimately passed included a five-day waiting period during which dealers were required to conduct a background check.

When the National Instant Check System came online, making background checks nearly instantaneous, the waiting period was eliminated (Ruhl, Rizer, & Wier, 2003/2004). Eliminating the waiting period was arguably unwise. A person who becomes enraged and decides to harm someone may cool off and reconsider during a five-day waiting period. Likewise, a person contemplating suicide might have a change of heart given time. A great deal can happen in five days. If the purpose of gun control is to reduce homicide and suicide, maintaining the waiting period would be a reasonable measure.

Conclusion

The founding fathers wrote the Second Amendment to ensure that citizens would be ready to defend their country with their own arms. The right to defend oneself against crime with a gun was left to the states to regulate, and all states exercised that regulatory authority. The fact that the federal government has since assumed some aspects of gun regulation does not mean that the constitutional right to bear arms is under threat. Opposition to gun control regulations would likely diminish if gun owners did not perceive every new regulation as a step toward prohibition.

It would be neither practical nor beneficial to ban guns entirely, but it is not unreasonable for a state to require that gun owners store their firearms in a manner inaccessible to children. Statistics have shown a 23% decrease in accidental deaths in states that have enacted such laws. Further research is needed — for example, do waiting periods and detailed background checks actually reduce the negative consequences of gun ownership? Perhaps most importantly, society must address the underlying social conditions that lead to crime. The connection between poverty and crime has been understood for years. Lafollette (2001) observes that the crime rate fell sharply between 1993 and 1998, during "the longest sustained economic growth in the country's history," a period during which "the violent victimization rates fell a full 34%" (p. 38). Addressing poor nutrition, inadequate medical care, and failing education could go a long way toward reducing crime, homicide, and suicide — without requiring any more gun control than the enforcement of laws already on the books.

References

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.

Ruhl, M., Rizer, A. L., & Wier, M. J. (2003/2004). Gun control: Targeting rationality in a loaded debate. Kansas Journal of Law & Public Policy, 13(2), 13–83.

Stell, L. K. (2001). Gun control and the regulation of fundamental rights. Criminal Justice Ethics, 20(1), 28–33.