Second Amendment Argument Essay Rubric

Here’s the trouble: in America, our unique history of rebellion (against colonial rule, against domestic tyranny), expansion (westward, etc.), and individualism (the Enlightenment and all that) leaves us a peculiar cultural legacy. Our gun control debate, like our ongoing discourses on race and our role as a superpower, is uniquely American in its construction; it depends on our on-going historical disagreements over the precise balance of power in the social contract, and over the idea of voluntary democratic rule. The argument has, of course, become polarized and is at present dominated by two equal and opposite sets of shrill extremists. On one side are those convinced that the right (possibly the responsibility) to own and carry guns is a national patrimony handed down from the framers; their core constituency is a fairly recently politicized group formerly called “sportsmen” and now popularly known as “right-wing gun nuts.” On the other side are those who believe it a moral and legal imperative that the government do whatever it must to prevent gun-related violence by further restricting the purchase and ownership of guns; this group, whose ranks include the fundamentally well-intentioned million marching moms, differ in their experience with firearms but have in common a conviction that we’d all be better off without them.

To those two camps I say this: you will never get what you want in America. Private citizens will always own guns in this country and will always be subject to just laws governing their access and ownership. The underlying truth is that while both groups are correct in their preferred understandings of the issues, they reach wrongheaded and impractical conclusions for American culture. They insist on seeing only the parts of the big picture that support their own stances. Partial truths won’t suffice, though, when the stakes are this high; gun violence affects all of us, no matter where we fall on the political spectrum, more or less equally. No solution that serves the interests of one extreme faction while ignoring the other will do any lasting good; no one should accept polemics about guns.

For starters, consider the NRA’s claim that the Second Amendment guarantees that the government shall not infringe on the right of the citizenry to keep and bear arms. The Supreme Court decided as long ago as 1939 that this amendment applied not to individuals but to the National Guard; it’s the “well-regulated militia,” not Harry Homeowner, whose right it is to pack heat. The gun lobby (which, quixotically, interprets the Court’s verdict in a way contrary to almost all subsequent judges) has encouraged its constituents to confuse the privilege of gun ownership with the right of participation in the national defense. No one—not God, not Alexander Hamilton—ever guaranteed the right the gun lobby claims as a foundation for the rest of its arguments. It’s a right that comes and goes with constructionist courts. Consider also that the NRA, for all its posturing about gun safety and responsible ownership, can’t refute the raw numbers of dead people who got that way because of a gun (total accidental, suicide, and homicides: 28,575 in 1999, the last year for which the NRA’s website lists numbers; I used these because they’re the lowest available, and still far too high). Regardless of one’s reading of the Constitution, there exists an undeniable tendency of some guns (or some gun owners) to end up putting bullets where they don’t belong. The Brady Campaign (formerly Handgun Control) is correct: the problem is real, and the gun lobby doesn’t have a solution.

On the other hand, gun control activists have long been stymied by the fact that the NRA has a lot of its facts right. It’s telling the truth when it says that private citizens armed with concealed weapons (and the required permits) can be instrumental in disrupting or thwarting criminal acts.1 It’s also telling the truth when it says that only honest people are negatively affected by gun control legislation, since criminals by definition won’t abide by the gun laws we might enact. If we were to mandate the registration of all firearms in this country, for example, only those of us who respect the law would obey it; the only guns that the police would know about are those least likely ever to be used in a crime. The gun lobby is absolutely right, sadly, to point out that cars are over three times more dangerous than guns, statistically speaking, and there’s no major groundswell behind banning their private ownership.2 In fact, the NRA’s dyspeptic mantra holds water: guns don’t kill people; other people do. Do guns make random violence easier to accomplish and more deadly, as gun control advocates claim? Of course they do. But the gun types are correct to point out that someone bent on destruction need not fire a gun to achieve it. At this point in history, that truth is self-evident.

Which leads to the core misunderstanding which has left these two groups fighting different battles on the same field: most gun people see guns as tools, or sporting goods, or as a backup to their dead bolt locks. For them the instrument of evil is human will, not the mechanical device so many of our fellow Americans seem inclined to bend to that will. In their view, firearms are no more inherently destructive or worthy of criminalization than alcoholic beverages, ammonium nitrate fertilizer, or the public performance of opera. They don’t want to have to register their guns because they shouldn’t have to; they haven’t done anything wrong, and they shouldn’t see their liberty curtailed because of the wrongdoing of others. In fact, they apply the same logic as pro-choice groups (if you don’t like guns, don’t buy one) and those who would reform our country’s drug laws (demand is a given; moderating the societal harm incidental to abuse is paramount). And their logic is contiguous with one guiding principle of American law: legislative bodies may not enact laws that restrict legitimate activity (skeet shooting, commuting to work) in the process of preventing illegitimate activity (shotgun murders, street racing).

For gun control people, guns are freighted with a meaning beyond their function: the gun is a symbol of what is worst in us and makes possible the primacy of the lowest common denominator in the culture. It is a totem of brute force, of unreason. They’re deeply suspicious of the gun lobby’s resistance to gun registration, licensing requirements, background checks, concealed-carry laws, and one-a-month purchase limits; these seem like commonsense measures that can and should become (or, in some cases, remain) the law of the land. The premise that guns do more harm than good in American culture precludes any argument that law-abiding people might have a legitimate interest in owning them; we don’t need pistols like we don’t need lawn darts. Guns in general, they argue, and inexpensive, high-powered handguns and assault rifles in particular, are a scourge on the victims of gun violence as a class. They are an anxiety and an onerous burden on our body politic as a whole. Guns scare people to death, and they should.


This essential failure to take seriously the perspective of one’s opponents coarsens the debate and corrupts those who conduct it. It’s not hard to find easily discredited acts of intellectual dishonesty in support of the gun lobby’s interests. The best known is the Lott study, which purported to prove an inverse correlation between the numbers of concealed-carry permits and violent crimes (his book, which the NRA might as well print and give away like the Gideons’ Bibles, is called More Guns, Less Crime). The numbers crumble on peer-review examination by independent statisticians, as the Brady Campaign’s website so exuberantly parses. On the other hand, most gun control proponents I’ve talked to display the same failure to interrogate their own doctrine that they find so objectionable on the other side. It is lazy and irresponsible, frankly, to accept either camp’s rhetoric uncritically.

A case in point from the gun control side is Salon.com’s 2002 article on Josh Sugarmann, head of the Violence Policy Center. Sugarmann opens with the assertion that “the gun industry is the only industry in America besides the tobacco industry that is not regulated for health and safety by a federal agency… . You name it, there’s an alphabet agency there for it—except for guns.” I think most BATFE agents (the “F” is for “firearms”) would be surprised at this revelation, especially since it falls to them to enforce gun laws arcane enough that they prevent engravers from accepting gun work (even decorative for-profit modification of a weapon is illegal unless one holds an FFL). Score one for alphabet soup.

Sugarmann continues to make the argument that

    If we had banned handguns in 1983, then we would have never seen these new trends [in weapons]. We wouldn’t have seen the move from six-shot revolvers to these high-capacity pistols… . People are getting older, dying off; they’ve basically purchased all the guns they’re going to buy. So the gun industry has done two things. The first thing is that they’ve tried to reach out, just like any other industry… . They’ve targeted women, children and even minorities. I say “even” minorities because there’s always been an antipathy toward the minority community if you look at some gun publications… . Gun culture in America didn’t become a handgun culture until the 1960s, when the handgun population tripled in this country, following the riots.

It’s easy to map this version of history: racist gun companies responded to white flight from city centers by beginning to manufacture high-capacity semiautomatic handguns and assault rifles. These weapons could be marketed twofold: first to white people to protect themselves from (statistically unlikely) black-on-white crime and then to African Americans, who would, the evil white industry hoped, exterminate one another in the ghetto.

I’m going to leave aside Sugarmann’s paranoid, conspiracy-laden conclusion; obviously some people of various races have armed themselves in the past twenty years to protect themselves against some people of other races, or of their own. I don’t believe the gun industry caused that phenomenon any more than I believe they make autumn arrive each year in order to boost the sales of deer rifles. But contemporary Americans have cause to accept his conclusion as at least potentially valid; after the Tuskegee experiments, after the King verdicts, many circumspect people might believe O.J. was framed, or that the CIA distributed crack cocaine. The history of race in America should leave us all slightly cynical, or at least unwilling to believe everything we hear from the seat of power. This is a sad and shameful truth, but one which can’t legitimately be affirmed by Sugarmann’s inflammatory logic.

For starters, anyone who has studied the history of gun culture in America in even the most perfunctory way should know that high-powered, high-capacity semiautomatic pistols have been widely available to civilians since 1914. That’s when the federal government coordinated with various manufacturers and the old (pre-1968 Gun Control Act) NRA to distribute the Colt .45 pistol under the auspices of the Division of Civilian Marksmanship. (The truism of the DCM is that the country can be more effectively defended in time of war or emergency if more citizens have a working knowledge of the service weapons used by the military. These people, the modern NRA’s “citizen-soldiers,” ideally require less training and might be more effective if needed for military or civil-defense duty than those without such familiarity.) Gun culture has been a handgun culture for at least that long, though it’s true that the post-1968 NRA was far more focused on handguns than the less doctrinaire NRA of prior years.

Assault rifles, on the other hand, became common immediately after the Korean War (and well before “the riots”), when under the same rubric the M-14 carbine (the first American consumer/military assault rifle) was made plentiful and cheap to hunters, marksmen, and anyone else in this country that wanted one.3 And the M-14 wasn’t the first or the most dangerous non-sporting weapon available to civilians; in the twenties, they could and did legally buy Thompson submachine guns and Browning fully automatic rifles. I’m not arguing that that’s sensible policy, but that nothing since 1983 represents a “new trend” in gun culture.

Given Sugarmann’s inaccuracies, no reader of any political persuasion can fully trust his assertion that the number of handgun sales has tripled. What if, for instance, the absolute number of sales tripled while the population as a whole grew by eighty million people? That’s what happened; Sugarmann’s numbers reflect a per capita increase far smaller than the absolute figure suggests. It’s still a meaningful jump, but it’s not tripling. It’s also a jump over a misleadingly long time frame; according to BATFE statistics, handgun production spiked in 1993 and fell over 50 percent between 1993 and 1999. The trend in recent history is exactly the opposite of his implication.

My point is not to demonize Sugarmann, with whom I actually agree on many issues, but to stress that no one I’ve found in researching this topic can be said to be telling the whole truth.4 It’s also important to note that Sugar-mann’s views have been distorted and mischaracterized by the pro-gun groups; he is a victim as well as a disseminator of half-truths. And it’s not good enough to pick a side whose half-truths one prefers; in the era of workplace and school shootings, COPS on television, and terrorist militias, we’re past that. The mouthpieces for both sides discredit themselves when they ignore the foundation of all lasting solutions, which is the effort to think critically about their own assumptions. Part and parcel of that effort is an ability—no, a willingness, even an insistence—to embrace the other side’s concerns as one’s own and to explore openly any that may prove genuinely legitimate.

In a slightly different context, here’s the same disconnect writ small: I’ve been told repeatedly, in various ways, that no one needs to hunt anymore, that people hunt in America today to satisfy some atavistic, freakish need to kill living things for pleasure, and that hunting should be banned. Maybe you can tell I don’t completely sympathize; I do understand the argument. It has, however, made that most dangerous leap to “no one” from “no one I personally know”; the Left cannot, for example, continue to fetishize the institution of small family farms without acknowledging that those farms, and the cultures they (thankfully) maintain, go through a lot of venison in the wintertime. Rural and subrural America still exists, and still matters, and still harbors a great many people who hunt not for sport but for food. I’m not arguing that all hunters in America hunt for subsistence, but that hunting as a cultural activity stands for values and ethics that have an intrinsic worth. The Left’s white-collar bent against gun ownership (and/or against hunting) displays the same impoverishment as does the Right’s blue-collar vilification of PETA; we’re all worse off if we can’t acknowledge that even people with whom we generally disagree (or to whom for cultural reasons we can’t relate) may have a few valid points. In other words, to those who claim that they “just don’t get it,” about whatever “it” is at any given cultural moment, I’d say this: you don’t have to get it for it to be right in a context other than your own. You just have to let others think for themselves and—this is tough, I know, in the era of Crossfire—keep an open mind to them. We as Americans have far more in common than we are tempted to acknowledge, and we share a common lot.


The object, remember, is to reach a middle-ground solution to the problem of gun crime that’s workable in the real world. Here and now, in America—listen, Brady Campaign, this is for you—there are too many guns for us to regulate. That horse is out of the barn; I wish it weren’t so, but it is. There are enough operable, nonobsolete guns in private hands in this country for every American to have one. We’re not going to find them all, though we could expend practically infinite amounts of (human, political, financial) capital trying. It has become popular to ask, with a quizzical air, why we can’t register guns as we do cars. If we can put a man on the moon—the palms are raised, the shoulders shrugged—why can’t we get this thing done? There are two reasons, for anyone who has more than a rhetorical interest in the question. The first is history: we’ve never registered guns, and we’ve always registered cars. People are used to it, and no one objects on principle, which leads to reason number two: contemporary politics. Almost no one on the Right and very few centrists and fewer liberals than one might hope will go to bat against the NRA in a legislative debate. For starters, there are some practical problems. What ought to be done about guns that don’t have serial numbers, which weren’t required until 1968? There are a lot of them out there. What about people who never get around to registering their guns? People who refuse on political grounds? People who are afraid their gun might once have been used in a crime and who fear that registering it might cast suspicion on them? And what about guns people can’t find?5

Furthermore, what’s the incentive for anyone to comply, really? We know that a statistical majority of people speed and cheat on their taxes; these are small crimes, but crimes for which there exist active and vigorous measures of detection and enforcement. We’d never get widespread compliance with a law for which there’s only passive detection of noncompliance. What I mean is, there will never be marshals going around to knock on doors and look for all the guns; they don’t have time, and I think the Bill of Rights mentions something about guys with badges stepping over your threshold. One could only be caught for noncompliance by using the unregistered gun in a crime and getting caught with it, at which point a gun violation is the least of one’s worries.

The only people who would comply voluntarily are compulsive goody-goodies like me, which is to say, the people least likely ever to have a gun of interest to the cops. A national gun registry would consume vast sums of money without accomplishing much in the way of crime prevention. There’s a counter-argument that suggests it would be valuable in actually solving crimes, but to me that’s a much less relevant place to concentrate our energy. People who die of gunshot wounds aren’t less dead once we find out who shot them. Our objective should be to prevent violent crime in the first place, and we know empirically that firearmsownership restrictions and incarceration rates (think Washington, D.C.) don’t get that done. It is an act of intellectual fraud, frankly, for anyone to suggest that any further restrictions we could enact would keep guns out of the hands of criminals; such restrictions could prevent some specific guns from getting into the hands of specific criminals in specific kinds of transactions but would never keep those criminals from getting a gun elsewhere.

A friend of mine once told me that the Russians will never be occupied because they have too much land; the Chinese, because they have too many people; and the Americans, because we have too many guns. No one—no one—who intends to use a gun in the commission of a crime need be dissuaded by gun registration, or by the lately hypothesized ballistics registry. Unregistered, unlicensed guns are simply too easy to come by, and by legal means.6 I checked recently; if I wanted to, I could attend a gun show within comfortable driving distance of my home in Virginia every weekend for the next three months. Not to mention that I could buy pre-ban assault rifles and high-capacity magazines from any private seller at all, and from any Federal Firearms License holder smart enough to have laid in a stash before the ban took effect. Plenty were; I looked in the classifieds and in a couple of major national mail-order catalogs. (No kidding.)

The gun control lobby’s fascination with assault rifles is unfortunate. Its concern seems to be the semiautomatic mechanism itself, which uses the recoil or exhaust of one round’s firing to load the next. As such, it’s functionally identical to millions of sporting rifles and shotguns (not to mention the aforementioned Colt pistols and surplus military rifles and carbines) that have been in civilian circulation for nearly a century: for each pull of the trigger, exactly one bullet goes down the pipe. They’re not machine guns, which have been illegal since 1934, though gun control groups are loath to disabuse their constituents of confusion on that point; like the NRA, they apparently prefer to keep people afraid of things they don’t understand rather than have an educated public capable of doing its own critical thinking.7 Further, the assault-weapons ban is an inherently awkward piece of legislation. Since the firing mechanism itself couldn’t be outlawed without affecting millions of legitimate guns, Congress banned specific makes and models. The resulting shenanigans (corporate name changes, model redesignations, and so on) point up the unintended consequence of the law: it has simultaneously criminalized these weapons and done nothing to eliminate them from the marketplace. We’re left with an uncountable number of assault rifle sales to anonymous buyers who undergo no background check. The road to hell is paved with good intentions.

In short, calls for a gun registry won’t advance the cause of anyone but guys you can find with a perfunctory Web search for “gun rights.” They honestly believe, and fervently argue, that the “jack-booted thugs” you’ll recall from the reign of Bush père want to strip the citizenry of its bird guns so they can rule via a one-world government. I’m not making this up, and I’m not exaggerating: gun control legislation makes this problem worse. So: in the interest of skipping the passage of laws we could never enforce, a national gun registry is dead in the water even before the first right-minded congressperson decides whether or not to take on the NRA. Doing so is political Russian roulette; the legislative mind has to contend with the possibility that its own district might be the one in which a little old lady who surrenders her deceased husband’s service carbine gets robbed and strangled in her own home. No politician who remembers the Willie Horton ads will want to be filmed driving that particular tank. The registry is impractical, wouldn’t be effective, and would be a waste of money, and here’s why: we have a ton of great gun laws already on the books. We don’t have politicians on either side of the aisle with the spine to fund their enforcement, or to pass the ones that we still need,8 but we have great gun control laws. The Brady Law is one of the most commonsensical pieces of legislation since the Johnson administration’s Civil Rights Act and shares with that law the distinction that many of its historical opponents now back its enforcement. And—sorry, but the NRA gets the nod here again—our money is best spent on preventing gun-related crimes by making those laws stick: you can’t have a gun if you’re a convicted felon, a known drunk, a wife-beater, or a lunatic. That principle makes sense to pretty much everyone, except maybe those domestic-abuser cops who are now riding desks courtesy of Bill Clinton. I’m glad they’re off the job. They should be, and removing them in the quintessentially reactionary law enforcement culture we’re enduring now would be exponentially more difficult than it was in 1996.

Enforcement could make a difference that registries never could. Every national-news gun story I can think of involves someone breaking an existing gun law or an established principle of responsible gun ownership somewhere along the way. The two Jonesboro, Arkansas, middle school snipers, for instance, were able to shoot their classmates because the grandfather of the younger had apparently left his guns unlocked and stored alongside unsecured ammunition. That’s negligent in and of itself, but it is unconscionable in light of the fact that the two cousins had had various run-ins with the law and had been identified as school bullies. Allowing children (especially troubled children) unfettered access to guns is unconscionable, a principle many states codify with child access prevention laws. Choices have consequences, and gun owners should not be exempt.

The Columbine shooters got their guns through straw-man purchases made by people of legal age at an underregulated gun show; again, there’s a crime uniting the killer with the weapon. And the D.C. snipers got their .223 AR-15 clone from a dealer who had already been busted for selling hundreds of guns without sales records. That crime is almost never prosecuted because of the zero-sum game prosecutors have to play with their staffs and budgets; the issue is enforcement. That dealer broke the law repeatedly because he was shown he had no need to fear the consequences.9 In the end, it’s irrelevant whether or not one believes gun ownership to have any conceivable legitimate end that might counterbalance its demonstrable negative consequences. Guns are here to stay. People in America, of intentions good, bad, or indifferent, will never in the imaginable future lack easy access to them.

I hope not to appear too friendly to the interests of the NRA; I’m not. I have never been among their members, and I’ve never given them any money. I also can’t use my local shooting range, for which a prerequisite of membership is an NRA card. I am, in fact, the NRA’s worst nightmare: a liberal who owns guns. I’m like James Carville with artillery. Having grown up partly inside and partly outside of the gun culture, I’m intimately familiar with what’s right about the gun control groups’ stereotypes of gun owners: I know militia types, survivalists, Jethroes who get drunk and shoot their guns at the moon, and guys—a lot of guys—who feel powerless and paranoid and underequipped to deal with a world they don’t understand and who articulate their unfathomable terror through a sublimated love affair with guns. Since I grew up in an inner-city neighborhood, I’m also well acquainted with the real and enduring consequences of gun violence in those communities. I simply don’t believe that making our country less free will make it any healthier; driving a subculture underground serves only to further polarize the citizenry and to alienate individuals from the whole. It makes our civic life less open and more dangerous. Didn’t anyone besides me see Fight Club?

There are, however, others of us who are of two minds about gun ownership, whose approach is somewhat more enlightened and self-critical and, I hope, constructive. I know there’s something intrinsically American that’s inseparable from the fierce insistence on the primacy of the individual that appeals to gun-rights advocates. They are wrong (and intellectually dishonest) about a lot, but they’re right that in this country, as perhaps in no other in the world, a person should be able to live by her own lights, provided she doesn’t hurt anyone else. That’s a principle with which my colleagues on the American Left, from Jefferson on down, have always been glad to agree.



NOTES

1 2.5 million per year, or so the NRA claims. This improbably high figure strains credibility, and the real number may not be quantifiable; suffice it to say, however, that there is a meaningful number and that many reasonable people consider personal defense a legitimate use of a firearm. The Brady Campaign, on the other hand, can tell you precisely the number of concealed-carry permit holders who have used their weapons to commit violent crimes (over 1,000 in Florida between 1997 and 2000; over 3,300 in Texas between 1996 and 2000). It’s a war of attrition with gun statistics. The two sides, for instance, quote wildly different numbers of prospective handgun buyers whose purchases are rejected after a background check; it’s very difficult to know whether the checks work or not.

2 According to the NRAILA website, between 1981 and 1999 there were 858,709 motor vehicle fatalities, compared to 297,797 nonsuicide firearms deaths (accidental shootings and homicides).

3 A friend of mine got his first carbine in the fifties through the Boy Scouts; it was delivered to his Scoutmaster, a vice president of a bank in Alexandria, Virginia. He took possession of the weapon in the bank lobby, slung it over his shoulder, and carried it out the door and down King Street all the way home. Times have changed, but not the way Sugarmann suggests.

4 Sorry; not even Michael Moore. See Alan A. Stone’s excellent and fair story on his film in the Boston Review. Stone, who is open about his affinity for Moore’s politics, summarizes Bowling for Columbine’s presentation of staged events as documentary. Remember when Moore received his rifle in the bank lobby? His advance team arranged that as a special favor. Remember him browbeating Charlton Heston about visiting Flint immediately after the shooting death of a child there? There was, it turns out, no such visit.

5 I once worked for a man who kept by his bedside a state trooper’s duty revolver he’d found in its holster on a vacant public boat ramp. Things happen.

6 Case in point: me. I’ve never in my life broken a gun law, but unless this essay sees publication there’s no way for law enforcement to know I’ve got a locked cabinet full of guns. They do all wear trigger locks, and the ammunition is locked in a separate building. My point is that anyone with walking-around money can get his hands on legal weapons; why break the law when you don’t have to?

7 There does exist a body of knowledge on illegally converting certain semiautomatic guns to full-auto; consider, though, that I’ve got a letter opener that I could convert into a dandy steak knife. I don’t plan to kill anyone with it.

8 I’m referring specifically to child access laws, which legislate established principles of gun safety, and to the gun show loophole. If a private, non-FFL-holding citizen buys a bunch of guns low, rents a table at a show, and sells them high, he’s in business. He looks like a gun dealer because that’s what he is; it fails the straight-face test to suggest otherwise. We need to regulate and tax these sellers just as we do any others and subject their customers to the same background checks they’d face buying a gun from Wal-Mart. Wayne LaPierre, Charlton Heston, are you listening? You should be embarrassed. You make your dues-paying members look stupid.

9 Incidentally, the sniper case is also a great example of why the proposed ballistics registry is a pointless waste of money; one needn’t file the lands and grooves of a gun’s barrel to obscure its provenance when its documentation is consigned to the four winds once the check clears.

John Casteen

John Casteen is the author of two books of poems, Free Union (Georgia, 2009) and For the Mountain Laurel (Georgia, 2011). He has contributed poems to the Paris Review, the Southern Review,Ploughshares, Fence, and elsewhere, and his work has been anthologized in Best American Poetry. He teaches at the University of Virginia. 

Essay/Term paper: The second amendment and the right to bear arms

Essay, term paper, research paper:  Gun Control

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WORKS CITED

[1] Cottrol, Robert, ed. Gun Control and the Constitution: Sources and Explorations on the
Second Amendment. New York: Garland Publishing Inc., 1994
[2] Dowlut, Robert. The Right to Keep and Bear Arms in State Bills of Rights and Judicial
Interpretation. SAF 1993
[3] Freedman, Warren. The Privilege to Keep and Bear Arms. Connecticut: Quorum Books,
1989
[4] Hickok, Eugene Jr., ed. The Bill of Rights: Original Meaning and Current Understanding. Virginia: University Press of Virginia, 1991
[5] Kruschke, Earl PHD. Gun Control: A Reference Handbook. California: ABC-CLIO Inc.,
1995
[6] Image on the cover page taken from TIME. Photographer unknown.
[7] Prune Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)
[8] Zimring, Franklin E., Gun Control. Encyclopedia Encarta: 1993-1997 Microsoft Corporation.








Throughout the years there has been an ongoing debate over the Second Amendment and how it should be interpreted. The issue that is being debated is whether our government has the right to regulate guns. The answer of who has which rights lies within how one interprets the Second Amendment. With this being the case, one must also think about what circumstances the Framers were under when this Amendment was written. There are two major sides to this debate, one being the collective side, which feels that the right was given for collective purposes only. This side is in favor of having stricter gun control laws, as they feel that by having stricter laws the number of crimes that are being committed with guns will be reduced and thus save lives. However while gun control laws may decrease criminals" access to guns, the same laws restricts gun owning citizens who abide by the law; these citizens make up a great majority of the opposing side of this argument. These people argue that the law was made with the individual citizens in mind. This group believes that the Amendment should be interpreted to guarantee citizens free access to firearms. One major group that is in strong opposition of stricter gun control laws is the National Rifle Association (NRA). The NRA argues that having stricter gun control laws will only hinder law-abiding citizens. The final outcome on this debate will mainly depend on how this Amendment is going to be interpreted.
The Second Amendment of the Bill of Rights states:
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. (Amendment II 1791)
This debate has produced two familiar interpretations of the Second Amendment. Advocates of stricter gun control laws have tended to stress that the amendment"s militia clause guarantees nothing to the individual and that it only protects the states" rights to be able to maintain organized military units. These people argue that the Second Amendment was merely used to place the states" organized military forces beyond the federal government"s power to be able to disarm them. This would guarantee that the states would always have sufficient force at their command to abolish federal restraints on their rights and to resist by arms if necessary. The Second Amendment was written shortly after the colonist had gained their freedom from Britain, and the reason for their gaining independence is that they were tired of living under British rule and especially under the leadership of King George the III. These gun control advocates argue that the Second Amendment grew out of the colonists" fear of standing armies and their belief that having militias that were composed of ordinary citizens was the surest way of maintaining their freedom (3).
The opposite side of this debate consists of those who claim that the amendment guarantees some sort of individual right to arms. This view comes from the literal wording of the Second Amendment, which states, "the right of the people to keep and bear Arms, shall not be infringed." Along with this argument, the NRA and other groups in opposition of gun control argue that the first, fourth, ninth, and tenth amendments are all constructed to refer to the citizens as individuals and not as a collective state. These gun advocates feel that if one is to give a rational interpretation of the collective view to the constitution, then one would have to assume that the Framers referred to the individuals in the first, fourth, and ninth amendments; to the states in the second amendment, and then separated the states and the people in the tenth amendment, although they feel that this was inconsistent with the wording of the second amendment (5).
Proponents of strict gun control laws, including Handgun Control Inc., and Coalition to Stop Gun Violence argue that the Second Amendment guarantees a collective right rather than an individual right. When the occasion occurs that Americans find it necessary to band together to defend their rights, they are constitutionally guaranteed the right to own the firearms they need for that purpose. They advocate restrictions on some types of firearms by citing high numbers of gun-related deaths in the United States. These proponents argue that by making stricter gun laws this will in turn reduce the number to crimes that are committed with guns and would thus save lives. One of their supporting arguments is that each year in the United States, more than 35,000 people are killed by guns, which is a death rate that is much higher than any other nation. Attacks involving a gun are five times more likely to result in a death than in any similar attacks made with a knife. Also, in 1992 guns were the weapons used in approximately two-thirds of the murders of the United States (8). However, while gun control laws may decrease criminals access to guns, those same laws restrict law-abiding citizens.
Opponents of gun control laws, including organizations such as the National Rifle Association (NRA), object to the inconvenience these laws may cause to law-abiding gun buyers or owners and would not prevent the possession of guns by criminals. The NRA argues that about half of all United Stated families own at least one gun, and that the most frequent motives for owning a gun is to protect the home, hunting or target shooting, and for collecting. Those who oppose restrictions on gun ownership find support in the language of the Second Amendment and believe that it should be interpreted to guarantee citizens free access to fire arms. The NRA has strenuously lobbied for the passage of state laws allowing citizens to carry concealed weapons. In arguing that the Second Amendment gives citizens the right to bear arm, the NRA argues that the Fourteenth Amendment enforces the Second (3). The Fourteenth Amendment states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (From Amendment XIV section 1.1868)
In this argument the NRA stresses that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." They feel that this clearly makes it unlawful for the state to pose restrictions on firearms which is a privilege that is given to the citizens of the United States in the Second Amendment.
The Second Amendment has not yet been applied to the states, either directly or through incorporation of the Fourteenth Amendment. In the United States v. Cruickshank the United States Supreme Court in 1875 held that the Second Amendment restricts only Congress and the federal government; this was later affirmed by the same court in Presser v Illinois in 1886. Thus, the nature of the Second Amendment does not provide a right that is enforced by the Fourteenth Amendment. The courts view that the Fourteenth Amendment was designed to protect the states against the federal or national government, and not to create a personal right that either the state or federal authorities are bound to respect.
Guarantees of individual liberties under federalism have two components: the federal constitution and state constitutions. Dependence should be first placed in the state"s Bill of Rights, declaration of rights, because the United States Supreme Court has explicitly acknowledged each state"s "sovereign right to adopt in it own Constitution individual liberties more expansive than those conferred by the Federal Constitution."(7). The written content of most states bills of rights provides greater protection of the right to arms than does the Second Amendment. Currently the constitutions of forty-three states guarantee a right to arms. Of the seven states that do not have a clear constitutional guarantee to arms, three of those have a right to self-defense and one considers the right to life a built-in right. The right to self-defense can only be given force and effect if its guarantee includes the right to own arms for defensive purposes (2).
In addition, state courts consider the right to bear arms to be a civil right and consider such a right to protect liberty and property interest. This has allowed plaintiffs to the use of the Federal Civil Rights Act to sue state officials for violating a state created property or liberty interest to keep and bear arms.
The NRA"s opposition to the Brady Bill, which is a federal hand gun law that was first proposed in 1985, helped to delay its passage for seven years. Congress finally passed the bill in 1993 and it went into effect in 1994. This law provides a five-day waiting period to allow local law enforcement officials to make sure the purchaser is qualified to own a hang gun. The law also established a $200 federal firearm license fee and a $90 annual license renewal fee. The NRA also unsuccessfully opposed a 1994-crime bill because it included a ban on the importation of semiautomatic "assault" weapons (8). Currently the constitutionality of the Brady Bill is going to be decided by the Supreme Court this term. The issue being the constitutionality of federal involvement in basically states issues. In 1995 the U.S. Supreme Court declared another gun law, one that banned guns within 1,000 feet of schools, unconstitutional. The States, not Congress, have the authority to enact such criminal laws the Court held. The Brady Bill would appear in the same category.
The constitutional issue at stake is the question, do we, or do we not, have the right as individuals to possess firearms. The courts have never struck down a gun control law because many people feel that the Amendment guarantees citizens free access to fire arms. The courts have interpreted the Second Amendment as applying only to militia weapons. The federal government and all U.S. states do have some gun control laws. These laws are based on several strategies: forbidding people who are considered to be unreliable from obtaining any firearms; prohibiting anyone other than the police, the military, and persons with special needs from acquiring high-risk guns; and requiring waiting periods before purchasing a gun or a gun license. The most common strategies are based on preventing unreliable people from obtaining guns, such as people who have committed a felony. Federal and state laws also prohibit minors from purchasing guns. In 1993 the U.S Congress passed the Brady Bill, which was named after a former White House press secretary James Brady. Brady and his wife because proponents of gun control after Brady was shot and seriously wounded during the 1981 assassination attempt on President Ronald Reagan (4).
As the debate over slavery gradually changed from being constitutional to unconstitutional so will the debate over gun control. The political culture that once supported slavery changed gradually over time once people saw more and more how unequal it was. It is inevitable that overtime, the political culture on gun control will also change, it will only take a few instances to help in the defining moment on deciding the danger of having a world without restrictions on guns. These moments will be seen throughout our nation in the form of examples of gun-related accidents and kids committing "Columbine High School" like acts. Once these things are taken into consideration only then will our "right to bear arms" be clearly defined. Currently public opinion seems to be in favor of having tighter gun restrictions as was shown with the passing of the Brady Bill. Though with this majority being in favor of gun control these acts of legislation are rather slow in forming, due to the NRA and the vagueness of the Second Amendment. Another hindering factor is that in spite of the public majority being in favor of stricter gun control, the states are moving in a different direction. The reason behind this action is that the constitutionality of tighter gun control laws is becoming a question. Once the Supreme Court of the United States answers this question on the legality of infringing on the right to bear arms we will know what our exact right is.

 

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