The Truth About Our Second Amendment
“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 of the United States Constitution.
The Sandy Hook Tragedy in Newtown Connecticut reopened the debate on gun control in America and how mental illness is treated and reported. There have been calls to renew the ban on the manufacture of semi-automatic assault weapons, a small part of the Violent Crime Control and Law Enforcement Act of 1994 that expired quietly in 2004. The renewed ban would only be on semi-automatic weapons, as fully automatic weapons have been regulated under the National Firearms Act since 1934.
The Supreme Court, the U.S. Constitution and the Second Amendment
Americans proudly cling to their Second Amendment Right to “keep and bear arms,” but the truth about the Second Amendment is something that a lot of Americans simply do not understand or do not want to acknowledge: the U.S. Supreme Court did not interpret the Second Amendment in the United States Constitution as being an individual right to keep and bear arms until 2008 (District of Columbia v. Heller). Up until 2008, the Second Amendment was federally interpreted as it read—a “well regulated militia.” In certain states’ constitutions, they make clear references to their citizens’ right to bear arms, but it seems that the federal constitution was not so implicit. It is important to note that even George Washington regulated how much gun powder a person could have on them, where the flint was to be stored and where the gun should be on his or her body.
Too often we hear people refer to their Second Amendment right as “God-given,” implying that it is an inherent right, but in actuality it is a provisional right. Personally, I am of the opinion that if something can be taken away, it was never a “right” to begin with—it is simply a privilege (i.e. convicted felons do not have the right to bear arms). Justice Clarence Thomas’ concurring opinion in the 2010 McDonald v. Chicago case helps to further clarify my point. Focusing on the Constitution’s text, Justice Thomas wrote, “The Constitution clearly intended to protect citizens’ right of self-defense and economic liberty, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.” Justice Thomas wrote that the Privileges or Immunities Clause “establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.” Thomas was not alone in his belief that the Second Amendment right was “incorporated” through the Fourteenth Amendment’s guarantee that the states may not “deprive any person of life, liberty, or property, without due process of law”—he and three other justices who comprised the majority agreed with his concurring opinion.
In 1998, six years after his retirement, Former Chief Justice Warren Burger declared that the Second Amendment did not guarantee the right to have firearms at all, that its purpose was only to ensure that “state armies—the militia—would be maintained for the defense of the state.” Chief Justice Burger described the Second Amendment as being a “fraud on the American people by Special Interest Groups” (i.e. the NRA).
In March 2007, a three-judge panel of the U.S. Court of Appeals found portions of the “Firearms Control Regulations of 1975” unconstitutional, specifically the handgun ban and trigger lock provisions. In 2008, the appeal found its way to the United States Supreme Court in the case of District of Columbia v. Heller. The Supreme Court ruled the Second Amendment protects an individual to bear arms and invalidated Washington D.C.’s handgun ban. However, the 2008 ruling does not prohibit all forms of gun control—laws requiring firearm registration remain in place, as does Washington D.C.’s assault weapons ban. In 2010, the Supreme Court heard McDonald v. Chicago, a case similar to District of Columbia v. Heller.
Even the High Court’s most conservative justice and most ardent gun rights supporter, Justice Antonin Scalia, acknowledged in his 2010 opinion in the case of McDonald v. Chicago that, “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Attempts to control types of weapons and who can possess weapons appear to be constitutional.” Apropos to the tragic events at Sandy Hook Elementary, Justice Scalia further wrote, ““Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in this opinion should be taken to cast doubt on longstanding prohibitions of firearms by felons and the mentally ill, or laws forbidding firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Scalia further commented in his opinion, “We also recognize another important limitation on the right to keep and carry arms. [Precedent says] that the sorts of weapons protected were those ‘in common use at the time’ [the Second Amendment was approved]. . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
Despite the National Rifle Association’s stance that the Second Amendment right is one that is limitless, the U.S. Supreme Court ruled that it is not absolute and a wide range of gun control laws remain “presumptively lawful.” According to the court, these include laws that (1) prohibit carrying concealed weapons, (2) prohibit gun possession by felons or the mentally ill, (3) prohibit carrying firearms in sensitive places such as schools and government buildings, (4) impose “conditions and qualifications on the commercial sale of arms,” (5) prohibit “dangerous and unusual weapons,” and (6) regulate firearm storage to prevent accidents.
In the 2008 presidential campaign, both major candidates (Barack Obama & John McCain) said that they approved of the Court’s decision. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.
In 2010, in the case of McDonald v. Chicago, the U. S. Supreme Court held (5 to 4) that the Second Amendment right has been incorporated through the Fourteenth Amendment’s Due Process Clause and is fully enforceable against the states. The Court, in an opinion written by Justice Alito, proceeded to strike down Chicago’s gun regulation insofar as it prohibited the private possession in the home of handguns for self-defense. Justice Thomas, concurring, would have held the right to bear arms to be a right protected by the Privileges and Immunities Clause of the Fourteenth Amendment.
States and cities have a variety of laws that restrict gun ownership, such as requiring mental health background checks or waiting periods before purchases, and the Court’s designation of gun ownership as a fundamental right, like freedom of speech, will provide a tool for those who want to challenge restrictive local laws. Subsequent legal battles may set national guidelines on restrictions on who can own guns, what kind of firearms can be owned and whether weapons can be carried outside the home. Justice Alito said the Court had made clear in its 2008 decision that it was not casting doubt on the long-standing prohibitions on gun possession by felons and the mentally ill, or keeping firearms out of “sensitive places” such as schools and government buildings. “We repeat those assurances here,” Alito wrote, “despite municipal respondents’ doomsday proclamations, [the decision] does not imperil every law regulating firearms.”
Politics, Gun Control and the NRA
The issue of regulating firearms is so sensitive that it has deeply divided this country, so much so, in fact, that the parents of victims of the Sandy Hook shooting were heckled by pro-gun advocates. When certain Congressmen and Congresswomen invited survivors and families of those affected by gun violence to the State of the Union Address, Representative Steve Stockman (R-TX) invited Ted Nugent, a staunch pro-gun advocate who has been investigated by the FBI twice for his public threats against President Obama.
This issue shouldn’t be dividing the country because, in my opinion, if the deaths of twenty children do not change things, I am afraid nothing will. I believe that the media should restore itself to respectability and begin reporting truth, rather than promoting fear and providing disinformation to the masses. For example, a number of conservative talk show hosts are insisting that the government is coming for “your guns.” The truth is that since 2006, the director of ATF (Alcohol, Tobacco, and Firearms) has had to undergo Senate confirmation, but never has. This means that, at present, no one actually has the authority to “come get your guns”. If House Republicans continue to consistently deny President Obama’s picks for confirmation, then surely the ATF will remain director-less and be unable to effectively do its job.
Contrary to what the National Rifle Association believes, according to the January 2013 Gallup Poll, 91% of Americans (and a majority of NRA members) think criminal background checks should be required to purchase a gun. After the Columbine Massacre, the NRA agreed, and this sentiment was a large part of its 1999 “Be Reasonable Campaign” blitz. The official NRA statement regarding it was this: “We think it’s reasonable to provide for instant checks at gun shows just like at gun stores and pawn shops. But what’s unreasonable is how the proposed Lautenberg legislation ignores the 250,000 prohibited people, like felons, who’ve walked away from gun stores — instead of being prosecuted for a federal felony for trying to buy a gun.”
Following the Newtown Tragedy, the NRA’s Executive Vice-President, Wayne LaPierre, essentially did a 180 degree flip on the organization’s previous stance regarding mandatory background checks at gun shows by issuing the following statement, “We do not [support background checks], because the fact is, the law right now is a failure the way it is working. The fact is you have had 76,000-some people that have been denied under present law. Only 44 were prosecuted. You’re letting them go. They’re walking the streets.” Of course, LaPierre’s assertion does not include the fact that this was signed in under G.W. Bush’s Patriot Act and there hasn’t been a Senate Confirmation on an ATF director since then, leaving ATF leaderless and providing its agents with little direction. The bottom line is that LaPierre’s logic is flawed—76,000+ people were denied access to guns, let’s focus on that.
This isn’t the only thing that La Pierre has flipped on either. In a speech after the 1999 Columbine Massacre, in which 12 students died while there was an armed guard on the premise, La Pierre stated, “We believe in absolutely gun-free, zero-tolerance, totally safe schools.” While remaining unusually quiet after the Sandy Hook tragedy, La Pierre finally broke his silence on a Sunday morning talk show and again did a 180 degree flip by proposing that every school in America should have NRA-trained guards and allow teachers to have guns in their classrooms. It is fitting, then, that the NRA chose to not recognize the Supreme Court’s 2010 opinion that guns should not be allowed in sensitive public places—specifically schools and federal buildings—because the inscription on the group’s building does not recognize the Second Amendment in its entirety either. LaPierre went on to blame the culture of violence in the United States on the video games and music that young children are exposed to, and adamantly denied the need for tighter gun restrictions, including a renewed call for a ban on certain semi-automatic weapons. One week after blaming Hollywood and video games for gun violence and mass shootings, the NRA released an app available on Apple products called “The Shooting Range” rated for ages 4 years and up. The 3D game allows players to practice shooting coffin-shaped targets with red cross-hairs (located near the head and the heart) and even allows you to choose the weapon of your choice, including a MK11 Sniper Rifle. The NRA released this game in hopes of teaching “safe and responsible gun ownership with fun challenges and realistic simulations with true to life firearms on virtual shooting ranges.” After a lot of public backlash over the 4 year old age limit, Apple increased the minimum age requirement to 12.
Another truth that is seldom heard or thought of is that President Ronald Reagan believed in gun control and was not completely against it. President Reagan’s 1981 assassination attempt (which paralyzed his Press Secretary, James Brady, and injured him and two others) did not result in any immediate action on gun control. Reagan did support gun control post-presidency, however, and did so on a number of occasions. He emphatically supported the “Brady Bill” (named for his permanently disabled Press Secretary) that ultimately imposed a background check and a waiting period on the purchase of guns. Reagan also noted that if the bill had been law in 1981, John Hinckley’s attempt might not have ever happened, as Hinckley was found not guilty by reason of insanity. While the Brady Bill was not passed on his watch, it had garnered great momentum in the last months of his presidency and was eventually passed during his successor G.H.W. Bush’s term. Three years after Congress passed the Brady Bill, President Reagan, Jimmy Carter and Gerald Ford wrote a letter to the Boston Globe to encourage Congress to pass the Assault Weapons Ban of 1996. Eventually President Clinton signed it into law with bi-partisan support. Reagan’s support of the Brady Bill and the Assault Weapons Ban were in direct opposition to his earlier opinion in 1975.
The Author’s Personal Opinion
I have researched our Second Amendment right and the issue of gun control and gun advocacy for several weeks; this article was not written off-the-cuff and I have tried to be very thorough in my research. I have been on the fence about some things and very adamant about others. This issue is one that, admittedly, has been a source of contention in my home and amongst my friends. I have even lost a few friends because of the truths I have told, but in the end it is my commitment to journalistic integrity that helped me to finish this. I had one friend delete me because I published the list of President Obama’s “27 Executive Orders” and asked which ones people felt infringed their Second Amendment right. There were none that anyone argued did, but a twenty-three year friendship was dissolved because I had the audacity to point out the truth. So be it.
With that being said, I may not agree with the way that New York State pushed its gun control law through the state legislature, or with some parts of the gun control laws (that at this moment are the strictest in the country). For instance, I have an issue with seven versus eight rounds in a chamber—does one really make a difference? I answer my own question with “when is it enough?” I don’t think people should be able to purchase ammunition online—disagree with me, but I’m of the opinion that if you truly have nothing to hide, you’ll follow the law. One cannot buy cigarettes or wine online and have them shipped into N.Y. State legally. I have to show my license and my purchase is recorded when I go to my pharmacist to buy my Advil Cold & Sinus medicine (the only thing that helps with Buffalo sinus headaches). I’m an innocent person, yet I am penalized because some person buys that very same medicine to manufacture crystal meth—but I’m okay with the inconvenience because it is in the best interest of the public. LaPierre says he wants guns in every school; you can’t smoke cigarettes on school property in New York State, why should guns be allowed? It’s true, criminals do not follow laws, but imagine a lawless society. Imagine if a corporation just dumped their toxic chemicals in our water sources. Imagine if drunk driving was accepted. Just imagine. At one point in time many of the guns used in these crimes were legally sold. The argument that one wants to arm themselves against the tyranny of the government doesn’t hold well either, considering that if the government truly wanted overthrow the people, your AR15 isn’t going to do you much good against drones that can target you while you’re lounging in your house watching television. Don’t bother throwing “our forefathers wanted us to protect ourselves should tyranny reign” around either; our forefathers never wanted a long-standing army for the very same reason.
I, personally, do not believe that every person has a “right” to own a gun just because they’re American. In my case, when I was 18 I went to enlist in the Army, and after passing a battery of tests I was permanently disqualified from ever joining because I was found to be 60% deaf in my left ear. The rationale was that I could bring my company harm if I didn’t hear something. I’m sorry, if my hearing isn’t good enough to serve my country, then I probably shouldn’t have a high-powered rifle. As I stated above, if something can be taken away, is it truly ever a “right”?
Our forefathers also promised us “life, liberty and the pursuit of happiness.” So my question, which no one has yet given me an answer to, is “When does your Second Amendment right trump my daughter’s right to life, liberty and a pursuit of happiness?” What about your child’s right to life, liberty and the pursuit of happiness? Our forefathers guaranteed us the right to freedom of speech in the First Amendment, but I cannot go into a crowded place and yell “FIRE!” To be frankly honest, I still hear that President Obama is a Muslim—which he’s not—but if he was, it doesn’t matter, because he was granted a right to religion in the First Amendment. We also have to remember that there are 25 more Amendments to our Constitution after the second one. Common decency, respect and humility still go a long way and I, for one, would like to see more of it.
The truth is guns are so much a part of our American culture that they’re not going away, and I think at some level we all understand, accept and respect this. We need to find some common ground on this issue and we need to find it quick; our children’s lives may depend on this someday and hopefully not sooner than we think. We, as a nation, need to take a collective deep breath and learn from these tragedies rather than discount and mock them. We need to get stop ignoring the proverbial pink elephant in the middle of the room. Change must happen on many levels. Change must come to these United States of America. If it doesn’t, twenty children and six of their teachers and countless other victims of gun violence whose faces we have not seen and their names we have not learned will have died in vain. A death is a tragedy, twenty-six is an epidemic.