Sandy Hook Shooting: Is It Time to Change the Second Amendment? Sandy Hook Shooting Is It Time to Change the Second Amendment About 80 million Americans, representing half of U.S. homes, own more than 223 million guns. The debate about the Second Amendment has been fierce, but after the horrible atrocity that just happened in Newtown, Connecticut, the time has come to rethink the amendment and change it. The change of the amendment in terms of availability of weapons, and who has the right to possess them, would create a safer society and lower the gun homicide rate in the U.S. — a figure that currently makes the U.S. the highest in the world. The change would include a certain necessary procedure in order to get a license for possessing a gun. Moreover, this procedure should include medical checks, full criminal history, and a police interview to prove they actually need a gun.
Atrocities like what happened today could theoretically be prevented if it were more difficult to come into possession of weapons in the U.S. At this moment, there is a widely accepted misconception about the history of the amendment and its purpose within American society. When the founding fathers implemented Second Amendment the main idea behind it was to provide citizens with a way to oppose possible tyrannical government. However, today it is widely believed that the Second Amendment is there to provide you with a way to protect yourself from other individuals. The debate is also present over whether the Second Amendment provides for collective or individual rights. However, in 2008, in the District of Columbia v. Heller case before the Supreme Court, the Court ruled that the Second Amendment protects an individual’s right to possess a firearm, unconnected to service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home.
In a 2011 Gallup poll, only 26% of American citizens said they would support the handgun ban. When Gallup first asked Americans this question in 1959, 60% favored banning handguns. But since 1975, the majority of Americans have opposed such a measure, with opposition around 70% in recent years. Americans have shifted to a more pro-gun view on gun laws, with record-low support for bans on handguns, assault rifle bans, and stricter gun laws in general. This remains true even as high-profile incidents of gun violence continue across the United States. The reasons for this ideological shift do not appear to be reactions to the crime situation, and are probably rather related to a widespread acceptance of guns by the American public. It is widely believed that having the right to bear arms contributes to higher security. By enabling a great number of people to carry weapons, the society as a whole will not benefit from greater security.
Moreover, it will become more unstable. The control of the weapons must be toughened and the right to possess and bear them restricted. The cases of shootings on American campuses and in schools are numerous and an argument that stricter gun control laws should be enforced stands strong. With medical and background checks, people who want to possess a gun won’t be stopped. However, the chance that someone with a mental disorder will have access to arsenal gets lower. The U.S. has the highest rate of gun ownership and of gun homicide in the developed world, it can definitely be argued that the amount of guns present the homicide rate will also be reduced. In 2012, Secretary of State Hillary Clinton agreed with the U.N. to set a timetable for the regulation of the arms trade between the states.
The United States joined 152 other countries in support of the Arms Trade Treaty Resolution, which establishes the dates for the 2012 UN conference intended to further regulate gun trade around the world. Many in the U.S. have seen this treaty as an introduction to domestic firearm control, even though this is wrong. In order to change the Second Amendment, a two-thirds majority in the Senate is required and at this point chances of changing that happening are slim. Throughout the world there are different regulations about gun ownership. Great Britain banned private ownership of guns in 1997; Australia also followed the same path. A 1999 Harvard School of Public Health study revealed that, “Americans feel less safe as more people in their community begin to carry guns,” and that 90% believe that “regular” citizens should be prohibited from bringing guns into most public places, including stadiums, restaurants, hospitals, college campuses, and places of worship.
We should not have the illusion that the world can overnight become a safe place where guns are not needed. These are dark times for those who demand sane regulation of gun ownership. The courts come and go. Public opinion and political power, like the common law, changes and evolves. Guns must not be accessible to all and they must be restricted. By restricting the gun availability, the possibility for situations like the Newtown massacre would be dramatically lowered. Even if we assume that one day a tyrannical government may come to power, under the current circumstances, with the U.S. government in possession of tanks, airplanes and drones, one can argue that the light weapons held by the citizens would not be enough. The argument of the founding fathers therefore becomes obsolete and the amendment must be changed to ensure the greater safety of American citizens.
The Second Amendment
Eleven years later, after the war for independence had been won, our Founders assembled once again to draw up a plan for governing the new nation. That plan would be ratified two years later as the Constitution of the United States of America. To understand the true meaning of the Second Amendment, it is important to understand the men who wrote and ratified it, and the issues they faced in creating the Constitution. During the debate over the ratification of the Constitution, there was significant concern that a strong federal government would trample on the individual rights of citizens–as had happened under British rule. To protect the basic rights of Americans–rights which each person possesses and that are guaranteed, but not granted, by any government–the framers added the first ten amendments to the Constitution as a package. Those amendments have come to be known as the Bill of Rights. They represent the fundamental freedoms that are at the heart of our society, including freedom of speech, freedom of religion and the right of the people to keep and bear arms.
The History of Our Rights
The British people did not have a written constitution as we have in the United States. However, they did have a tradition of protecting individual rights from government. Those rights were set forth in a number of documents, including the Magna Carta and the English Declaration of Rights. The Founders who wrote the Bill of Rights drew many of their ideas from the traditions of English “common law,” which is the body of legal tradition and court decisions that acted as an unwritten constitution and as a balance to the power of English kings.
The Founders believed in the basic rights of men as described in written legal documents and in unwritten legal traditions. One of these was the right of the common people to bear arms, which was specifically recognized in the English Declaration of Rights of 1689. However, the Founders also recognized that without a blueprint for what powers government could exercise, the rights of the people would always be subject to being violated. The Constitution, and particularly the Bill of Rights, was created to specifically describe the powers of government and the rights of individuals government was not allowed to infringe.
1. Does the Second Amendment Describe An Individual Right?
Some people claim that there is no individual right to own firearms. However, anyone familiar with the principles upon which this country was founded will recognize this claim`s most glaring flaw: in America, rights–by definition–belong to individuals.
The Founding Fathers created the Bill of Rights to protect the rights of individuals. The freedoms of religion, speech, association, and the rest all refer to individual liberties. The Second Amendment right to keep and bear arms is no different. When the first Congress penned the Second Amendment in 1789, it took the wording, with some style changes, from a list of rights introduced by James Madison of Virginia. Congressman Madison had promised the Virginia ratifying convention that he would sponsor a Bill of Rights if the Constitution were ratified. The amendments he wrote would not change anything in the original Constitution. Madison repeatedly insisted that nothing in the original Constitution empowered the federal government to infringe on the rights of the people, specifically including the right of individuals to have guns.
In constructing the Bill of Rights, Madison followed the recommendations of the state ratifying conventions. Though they ratified the Constitution, several of those conventions had recommended adding provisions about specific rights. Five conventions recommended adding a right to arms; by comparison, only three conventions mentioned free speech. Members of Congress had no doubt as to the amendment`s meaning. They and their contemporaries were firearm owners, hunters and in some cases gun collectors (George Washington and Thomas Jefferson exchanged letters about their collections). They had just finished winning their freedoms with gun in hand, and would, in their next session, pass legislation requiring most male citizens to buy and own at least one firearm and 30 rounds of ammunition.
The only reason there is a controversy about the Second Amendment is that on this subject many highly vocal and influential 21st Century Americans reject what seemed elementary common sense–and basic principle–to our Founding Fathers. The words of the founders make clear they believed the individual right to own firearms was very important: Thomas Jefferson said, “No free man shall be debarred the use of arms.”
Patrick Henry said, “The great object is, that every man be armed.”
Richard Henry Lee wrote that, “to preserve liberty it is essential that the whole body of people always possess arms.”
Thomas Paine noted, “[A]rms . . . discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property.”
Samuel Adams warned that: “The said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”
The Constitution and Bill of Rights repeatedly refer to the “rights” of the people and to the “powers” of government. The Supreme Court has recognized that the phrase “the people,” which is used in numerous parts of the Constitution, including the Preamble, the Second, Fourth, Ninth and Tenth Amendments, refers to people as individuals. In each case, rights belonging to “the people” are without question the rights of individuals.
Dozens of essays have been written by the nation`s foremost authorities on the Constitution, supporting the traditional understanding of the right to arms as an individual right, protected by the Second Amendment.
2. Isn`t the “well regulated militia” the National Guard?
Gun control supporters insist that “the right of the people” really means the “right of the state” to maintain the “militia,” and that this “militia” is the National Guard. This is not only inconsistent with the statements of America`s Founders and the concept of individual rights, it also wrongly defines the term “militia.”
Centuries before the Second Amendment was drafted, European political writers used the term “well regulated militia” to refer to all the people, armed with their own firearms or swords, bows or spears, led by officers they chose.
America`s Founders defined the militia the same way. Richard Henry Lee wrote, “A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . .” Making the same point, Tench Coxe wrote that the militia “are in fact the effective part of the people at large.” George Mason asked, “[W]ho are the militia? They consist now of the whole people, except a few public officers.”
The Militia Act of 1792, adopted the year after the Second Amendment was ratified, declared that the Militia of the United States (members of the militia who had to serve if called upon by the government) included all able-bodied adult males. The National Guard was not established until 1903. In 1920 it was designated one part of the “Militia of the United States.” The other part included other able-bodied adult men, plus some other men and women.
However, in 1990, the Supreme Court held that the federal government possesses complete power over the National Guard. The Guard is the third part of the United States Army, along with the regular Army and Army Reserve. The Framers` independent “well regulated militia” remains as they intended, America`s armed citizenry.
3. Have the Courts or Congress ever studied the meaning of the Second Amendment? On June 26, 2008, the Supreme Court issued its decision in the case of District of Columbia v. Heller. In a 5-4 decision, the Court upheld the ruling of the U.S. Court of Appeals for the D.C. Circuit that the Second Amendment protects a right to possess firearms for individuals, and not just a right to have them as part of a militia or the National Guard. The Court also held that the Second Amendment is not meant to protect a “state’s right” to maintain a militia or National Guard.
The decision struck down the District’s bans on handguns and on having any gun in usable condition as violations of the Second Amendment, and prohibited the District from denying a person a permit to carry a firearm within his home on without cause.
Highlights of the majority opinion, written by Justice Antonin Scalia and joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas, can be found here: /Issues/FactSheets/Read.aspx?id=235&issue=010.
The Court ruled that “[T]he operative clause [of the Second Amendment] codifies a ‘right of the people.” And went on to explain: “In all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset. . . .’”
Put plainly, the Heller decision says that the Second Amendment protects an individual right to possess firearms for legal purposes, including for sporting use and for self-defense. In coming to this conclusion, the courts examined the meaning of the words in the Second Amendment, including the meaning of “arms” the phrase “to bear arms” and to “keep “ arms. The court also carefully considered the meaning of “militia” and the relationship between the militia and the “right to keep and bear arms.”
In the majority opinion, the court clearly rejected the idea of a “collective” or group right, that is, a right held by the states. The court found that the Second Amendment protects an individual right to possess firearms.
The full impact of the Heller decision is still not known. States and cities with restrictive gun laws are now facing challenges to their specific laws and future court cases will continue to define the how the Second Amendment protects individual rights and what types of gun laws will be allowed.
Before the Heller decision, the most thorough examination of the Second Amendment and related issues ever undertaken by a court is the 2001 decision of the U.S. Court of Appeals for the Fifth Circuit in U.S. v. Emerson. In Emerson, the Appeals court devoted dozens of pages of its decision to studying the Second Amendment’s history and text. It began by examining the Supreme Court’s decision in U.S. v. Miller (1939), which individual rights opponents claim supports the notion of the Second Amendment protecting only a “collective right” of a state to maintain a militia. The Fifth Circuit disagreed. “We conclude that Miller does not support the collective rights or sophisticated collective rights approach to the Second Amendment.”
The court then turned to the history and text of the Second Amendment. “There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words ‘the people’ have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words ‘the people’ have precisely the same meaning within the Second Amendment as without. And as used throughout the Constitution, ‘the people’ have ‘rights’ and ‘powers,’ but federal and state governments only have ‘powers’ or ‘authority’, never ‘rights.’”
The court concluded, “We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government’s power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans. We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.”
Four times in American history, Congress has enacted legislation declaring its clear understanding of the Second Amendment`s meaning. Congress has never given any support for the newly minted argument that the amendment fails to protect any right of the people, and instead ensures a “collective right” of states to maintain militias. In 1866, 1941, 1986, and 2005, Congress passed laws to reaffirm this guarantee of personal freedom and to adopt specific safeguards to enforce it.
The Freedmen’s Bureau Act of 1866 was enacted to protect the rights of freed slaves to keep and bear arms following the Civil War and at the outset of the chaotic Reconstruction period. The act declared protection for the “full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and . . . estate . . . including the constitutional right to bear arms. . . .”
The Property Requisition Act of 1941 was intended to reassure Americans that preparations for war would not include repressive or tyrannical policies against firearms owners. It was passed shortly before the sneak attack on Pearl Harbor, which led the United States into World War II. The act declared that it would not “authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport,” or “to impair or infringe in any manner the right of any individual to keep and bear arms. . . .”
The two more recent laws sought to reverse excesses involving America’s legal system. In the Firearms Owners’ Protection Act of 1986, Congress reacted to overzealous enforcement policies under the federal firearms law: “The Congress finds that the rights of citizens to keep and bear arms under the second amendment to the United States Constitution; to security against illegal and unreasonable searches and seizures under the fourth amendment; against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies. . . .”
And in 2005, as a result of lawsuits aiming to destroy America’s firearms industry, Congress passed the Protection of Lawful Commerce in Arms Act to end this threat to the Second Amendment. The act begins with findings that go to the heart of the matter: “Congress finds the following: (1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed. (2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.”
4. What are “gun control” laws?
“Gun control” is the popular name for laws that regulate, limit or prohibit the purchase and possession of firearms. “Gun control” laws are usually proposed on the grounds they will stop the criminal misuse of firearms, but they are almost never actually targeted at criminals. Supporters of “gun control” most commonly call for laws that restrict law-abiding people, the only ones who will obey them. Laws prohibiting the possession of a firearm are unlikely to stop a person willing to commit robbery, assault or murder. On the other hand, honest citizens who respect the law will submit to the gun control laws, even if the laws do not make them safer.