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11
Guns and Gun Control
By David J. Krajicek
Brady Center’s Perspective
Here is the Brady Center’s take on the Second Amendment:
The assertion that the Second Amendment to our Constitution guarantees a broad, individual right to "keep and bear arms" and that it precludes any reasonable restrictions on guns is the philosophical foundation of the NRA's opposition to even the most modest gun control measures.
The NRA's constitutional theory is, however, divorced from legal and historical reality. It is based on carefully worded disinformation about the text and history of the Second Amendment and a systematic distortion of judicial rulings interpreting the Amendment. The result is a Second Amendment “mythology” that has been difficult to counter.
When the U.S. Constitution was adopted, each of the states had its own “militia”--a military force comprised of ordinary citizens serving as part-time soldiers. The militia was "well-regulated" in the sense that its members were subject to various requirements such as training, supplying their own firearms, and engaging in military exercises away from home. It was a form of compulsory military service intended to protect the fledgling nation from outside forces and from internal rebellions.
The "militia" was not, as the gun lobby will often claim, simply another word for the populace at large.
The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III's troops fresh in their minds, many of the "anti-Federalists" feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written to prevent the federal government from disarming the state militias.
In the 20th century, the Second Amendment has become an anachronism, largely because of drastic changes in the militia it was designed to protect. We no longer have the citizen militia like that of the 18th century.
Today's equivalent of a "well-regulated" militia--the National Guard--has more limited membership than its early counterpart and depends on government-supplied, not privately owned, firearms. Gun control laws have no effect on the arming of today's militia, since those laws invariably do not apply to arms used in the context of military service and law enforcement. Therefore, they raise no serious Second Amendment issues.
As a matter of law, the meaning of the Second Amendment has been settled since the U.S. Supreme Court ruling in U.S. v. Miller, 307 U.S. 174 (1939). In that case, the Court ruled that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the state militia. Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980.
Even if one believes that the Second Amendment guarantees an individual right to keep and bear arms, does that mean that all gun control laws are unconstitutional? Of course not. In fact, several states have clauses in their state constitutions which explicitly guarantee an individual right to keep and bear arms, yet not a single gun control law has been overturned in those states for violating that clause.
The rights guaranteed by the Constitution have never been absolute. The First Amendment protects the freedom of the press, yet libel laws prevent newspapers from printing malicious lies about a person. The First Amendment also protects free speech, yet one cannot yell "Fire" in a crowded theatre. It is doubtful that the Founding Fathers envisioned a time when over 30,000 people are dying from gun violence a year, when high-power military-style weapons like AK-47's with 30-round magazines are available on the streets, when an 14-year-old can take his father's guns and mow down his classmates, or when parents leave a loaded pistol around and a 2-year-old can easily fire it. The vast majority of the American people support reasonable gun control laws and view them as necessary to reduce the level of gun violence in this country. The framers of the Constitution would surely agree.
More on the Brady perspective: http://www.gunlawsuits.org/defend/second/index.php
NRA’s Perspective
And the NRA’s take:
The Second Amendment guarantees a citizen's right to keep and bear arms for personal defense. The revolutionary experience caused our forebears to address a second concern -- the ability of Americans to maintain a citizen militia. The Founding Fathers trusted an armed citizenry as the best safeguard against the possibility of a tyrannical government.
James Madison, author of the Second Amendment, wrote that Americans had "the advantage of being armed" that was lacking in other nations, where "the governments are afraid to trust the people with arms." Patrick Henry proclaimed the "great object is that every man be armed. . . . Everyone who is able may have a gun." The Second Amendment was then, as it is today, about freedom and the means to protect it.
In United States v. Miller, the Supreme Court refused to take judicial notice that a short-barreled shotgun was useful for militia purposes. Nowhere did the court hold that an individual does not have a right to keep and bear arms.
The U. S. Supreme Court has recently recognized the Second Amendment as an important individual right…On Dec. 17, 2004, the U.S. Department of Justice published an exhaustive Second Amendment memorandum. It concludes without reservation that "the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units."
The Founding Fathers distrusted a government that wouldn't trust its people. To fulfill the promise of the Declaration of Independence, the authors of the U.S. Constitution and its Bill of Rights made it clear that individual rights were paramount. The Bill of Rights, wrote Madison, was "calculated to secure the personal rights of the people."
Our founders risked their lives to create a free nation, and they guaranteed freedom as the birthright of American citizens through the Bill of Rights. The Second Amendment remains the first right among equals, because it is the one we turn to when all else fails.
More on the NRA perspective: http://www.nraila.org/Issues/FactSheets/Read.aspx?id=177
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