By Meher Piplani
The Second Amendment of the American Constitution has long been used to protect gun owners from restrictive firearm regulation, but now more than ever, gun control needs to be enforced in order to reduce the many instances of gun violence in America. Gun control, also known as firearm regulation, is an expansive term which has been defined by The New York Times as “any sort of restriction on what kinds of firearms can be sold and bought, who can possess or sell them, where and how they can be stored or carried, what duties a seller has to vet a buyer, and what obligations both the buyer and the seller have to report transactions to the government.” On December 15th 1791, the first ten Amendments to the American Constitution were adopted, these are known as The Bill of Rights, which included the Second Amendment that has long since been a point of debate.
On December 14th, 2012, The Sandy Hook Elementary School Shooting took place in Newtown, Connecticut, where 20-year-old Adam Lanza (an American citizen) first killed his mother, then proceeded to shoot and kill 20 children between the ages of 6-7 years as well as 6 adults, following which he committed suicide. Hook caught global attention due to the magnitude as well as the heinous nature of the crime. This brought back the world’s attention to what was soon to become an epidemic, the problem of gun violence in America. The gun control debate of America has been happening since the 1990’s but this one shooting transformed the debate to a large scale movement. The term Gun Violence, includes any sort of criminal violence aided by the use of a firearm. This paper aims to demonstrate that the imposition of gun regulation is not a breach of the Second Amendment and will do so by analyzing the factors which led to its creation as well as by following a close reading of it in an attempt to deduce its true meaning. This will further help in examining the role of the aforesaid Amendment in the gun control debate.
The right to bear arms was hardwired into the American psyche due to its violent colonial and revolutionary history which led to the creation of the Second Amendment. There also seems to be a historical link between the English Bill of Rights of 1689 and the Second Amendment. The English Bill of Rights states, with regards to Subjects’ Arms, “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.” At the time that this was published (1689), people were armed for their own safety as well as the safety of others. When organized nations began to emerge, this protection was extended to the State as without a regular army or police force (which wasn’t established in England until the 18th century), it was the duty of the citizens to maintain the peace and protect the crown. The Bill of Rights’ take on arms was clearly written in order to facilitate the natural right of self-defense as well as protection of the Crown while preserving regulatory power for the State only. Part XIII of The Pennsylvania Constitution of 1776 states “That the people have a right to bear arms for the defense of themselves and the state”. Both, the Pennsylvania Constitution as well as the English Bill of Rights are evidence to support the fact that one of the main reasons for the writing of the Second Amendment was for it to act as an auxiliary to self-defense and to participation in law enforcement. Against the backdrop of violence, revolution and tyranny, the right to bear arms was clearly important to fend for personal safety as well as the safety of the state. However, in present day America, the individual’s right to bear arms is not as important as it was before. As now there are other ways to remain protected. With the introduction of the National Guard and proper law enforcement systems, the meaning of this right has been modified over the years. Another reason involves deterring tyrannical governments. The United States Declaration of Independence is the document that allowed the 13 American colonies to become sovereign states free of British rule, these states formed the nation of the United States of America. The centerpiece of the Declaration was the Rights of a Man, these rights were endowed upon all of the citizens of America. One of these rights were; “That whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute a new Government”. It allows the citizens of America the right to rebel, i.e., the natural right to resistance. It also instills notions of liberty and freedom which have often been said to be the foundation of the creation of the United States of America. This was proven again through the politics between the Patriots and the Loyalists during the 1760s pre- revolutionary period. The Patriots, opposed by the Loyalists who remained loyal to the British Crown, were the colonists of the Thirteen colonies who rebelled against British Rule. As opposition to British Rule continued to grow, a distrust towards the Loyalists within the militia developed amongst the Patriots, thus encouraging Patriots to form a militia system of their own. These militia systems coveted to have separate stocks of arms for themselves. This shows that the right to rebel and bear arms was a pre-existing right before the Second Amendment and therefore the writers of the Second Amendment were intent on upholding that right while preserving the power to regulate them to the State rather than the Federal government. This right does not allow arms to be freely distributed without regulation. Making sense of why the Second Amendment was introduced in the first place, is an integral part of building an understanding of its meaning in present day America.
The meaning of the Second Amendment in the American Constitution has been intricately studied and disputed for several years since its introduction into Federal Legislation. The Second Amendment reads: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms should not be infringed”. This statement has two clauses:
(i) A well-regulated militia being necessary to the security of a free state
(ii) the right of the people to keep and bear arms shall not be infringed
The structure and wording of the Amendment seem to point towards the fact that its purpose is to preserve the right to arms for the effectiveness of state militias. The relationship that exists between the two clauses is equally essential to its analysis as the word to word connotations of the clauses.
The Prefatory clause clearly sets forth the intent of the amendment therefore meaning that the definition of militia shapes the content and purpose of the second clause. The conventional meaning of the word militia refers to a state military force as defined in Article 1; section 8, clauses 15 and 16 of the Federal Constitution where the US Congress has been granted the power to “provide for organizing, arming, and disciplining the Militia” as well as “provide for the calling of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” The fact that they may be called forward by the congress proves their status as state institutions. Furthermore, the Militia Act of 1792 clearly stated that the militia consisted of “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is hereinafter excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer.” This substantiates the view that militias were considered a state military force. The term ‘well-regulated’ corroborates that militia can only be reasonably understood as indicating to a military force organized by a government entity. ‘Necessary to the security of a free state’ affirms the importance of (state) militias to the security of the states which had just been newly aligned by their constitutional relationship. The second phrase uses the term ‘bear arms’ which typically corresponds to military purposes. The first clause substantiates and explains the purpose of the more significant second clause by serving to shape and define the connotations of the fundamental matter encompassed in the second clause and therefore the amendment as a whole. For several years, the Supreme Court and the lower courts of America believed this interpretation of the Amendment which assumed the amendment provided state militias (present day National Guard) with a right to bear arms but didn’t bestow the right to own or carry weapons to individuals. This view was demonstrated in the United States v. Miller decision of 1939 where the Supreme Court, in an opinion by Justice McReynolds held: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well-regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” Building an understanding of the Second Amendment and its background allows a more expansive interpretation of its role in modelling the gun control debate in America.
The true meaning of the Second Amendment has been contested for years and is now at the center of the gun control debate between the National Rifle Association (NRA) and the gun control lobby. The National Rifle Association is by far the most powerful gun rights lobby in America due to its strong political prowess and has therefore been particularly pertinent to the lack of gun control laws in state legislature. Presently, the NRA believes in the ‘individual ownership theory’ in which the second clause of the Amendment has more bearing than the first. and consequently it is believed that the Second Amendment protects the rights of all individuals to own guns (without any regulation). Former Chief Justice Warren Burger stated in 1991 on PBS News Hour, that the individual rights theory was “a fraud” and if he were presently writing the Bill of Rights “there would be no such thing as the Second Amendment”. However, the NRA’s view hasn’t always been consistent. In the 1934 hearings on the National Firearms Act, the president of the NRA, Karl T Frederick stated, “I have never believed in the general practice of carrying weapons, I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.” The NRA then went on to work with the federal government on the Gun Control Act of 1968 after the assassinations of Martin Luther King Jr, President John F Kennedy and Robert Kennedy. This clearly shows that before the 1970’s the NRA believed in the right to bear arms but with reasonable regulation. In 1976, the NRA formed its Political Action Committee (PAC) just in time for the 1976 elections, and then in 1977, elected a group of political conservatives who began to align with Republican members of Congress thus creating a more right-wing group. This now reformed group was more politically active and pushed for more relaxed gun laws by harnessing the power it gained through allying with conservative members of Congress. It consecutively introduced the alternate interpretation of the Second Amendment therefore originating the ‘individual ownership theory’. The NRA has continued to gain political support through the extensive donations made during elections to members of Congress who are against gun control. The NRA is particularly active during presidential campaigns and has gone on to donate millions of dollars to the candidates that support gun rights while actively targeting those who aim to regulate guns. In the 2016 election, the group supported republican Donald Trump against his democratic opponent Hillary Clinton. Similarly, in the 2012 election, the NRA chose to support republican Mitt Romney against Barack Obama the Democratic nominee. Gun Control advocates lack an established organisation (such as the NRA) to generate revenue and are hence unable to expand their political power on monetary grounds therefore having to depend on emotional factors to gain support. Unfortunately, emotional backing isn’t sufficient to create a lobby powerful enough to combat the NRA, an over 100-year-old organization with an abundance of political and monetary support.
The meaning of the Second Amendment has been distorted over the years to fit the implication of what powerful gun rights lobbyists want the Right to mean. State lawmakers shouldn’t consider gun control as a violation of this Right but a solution to the problem of gun violence in America. Imposing gun control would protect the general safety of America and its citizens which is the purpose of such laws in the first place and the intent of the Forefathers.
- Pérez-Peña Richard; Gun Control Explained; The New York Times; OCT. 7, 2015 https://www.nytimes.com/interactive/2015/10/07/us/gun-control-explained.html
- Timeline: The deadliest mass shootings in the US; Al Jazeera; FEB. 17, 2018
- Parliament of England; English Bill of Rights; DEC. 16, 1689
- State of Pennsylvania; Pennsylvania Constitution of 1776; Part XIII; SEP. 28, 1776
- Jefferson Thomas, Edited by United States Congress; Declaration of Independence; JUL 4. 1776
- Madison James; United States Bill of Rights; Second Amendment; DEC 15. 1791
- Introduction by Shamaya, Angel; NRA President’s Testimony During Congressional Debate of the National Firearms Act of 1934; U.S. Government Printing Office, Hearings took place on May 14, 15, 16 1934, Published MAR. 4, 2004
- United States Congress; Gun Control Act of 1968; OCT 22. 1968
- Toobin Jeffrey; So you think you know the Second Amendment?; The New Yorker; DEC. 17, 2012
- United States v. Miller, 307 U.S. 174 (1939)
- United States of America, Constitutional Convention; U.S. Constitution, Article I, Section 8, clauses 15-16; SEP. 17, 1787
- United States Congress; Second Militia Act of 1792; MAY. 8, 1792
- Stated by Warren Burger; PBS News Hour; DEC. 16, 1991
Meher Piplani, the author, is a first year economics honors student from Jindal School of Government and Public Policy.
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