One can absolutely argue that the idea of needing to violently fight the American government is archaic, and illogical in modern times. One can absolutely argue that the idea of needing to violently fight a future oppressive government is still applicable today, and logical in modern times. I sympathize with both sides. I do not believe citizens should have nuclear weapons, but neither should the American government. However, these ideas are outside the scope of this paper. This paper focuses on the legality and understanding of the Second Amendment in proper context.
To understand gun control, one must first look at what it means to have “gun control” as a nation and as an individual. It has been defined simply as the “efforts to regulate or control sales of guns”.[1] The government “regulates or controls” many things from alcohol and cigarettes, to the ability to drive a car. Nearly all people would agree that some organization or authority needs to keep tabs on who is buying weapons and where those weapons are going, to an extent. To what extent is what the vast majority of people disagree. Let’s look at the legal arguments, and how government can and cannot regulate or control the sales of weapons.
Currently the Brady Bill allows for background checks when buying handguns[2] and the federal government also has laws in which known felons cannot possess arms[3], exempting some non-violent or victimless crimes.[4] One of the major problems currently is the lack of enforcement of current laws, or lack of resources to enforce current laws. For example, Adam Lanza, the monster that committed the horrific murders at Sandy Hook Elementary, illegally obtained the weapons. The law requires one to be of 21 years of age--Adam Lanza was 20--meaning it was his mother who provided the weapons of Lanza’s actions. Had the laws that are already in place been followed and enforced, perhaps this event would have never occurred. Admittedly, Lanza could have carried out this crime a year later when he turned 21 years of age. The mother of Lanza was legally allowed to own weapons, having no record of mental illness or violent tendencies. Adam Lanza also had no such history. The problem with background checks is that they are many times inherently faulty. Many, if not most, mass murderers have no record of violent tendencies, much less have medical documents outlining a mental illness. For this reason, the current gun control bill in the senate, which extends background checks, will do little or nothing to curb violence.[5]
When considering any legislation, one must first look to the Constitution. 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, shall not be infringed.”[6] Questions arise over how to define words “militia” and “people”. Many have attempted to define “militia” as the National Guard and “people” means a collective term meaning society as a whole.[7] The problem with this argument, is it contradicts the official definition of “militia”, which is set by the federal government. The U.S. Code on the meaning of militia states “(a) the militia of all able-bodied males at least 17 years of age and…under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of Militias are—(1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.”[8] The U.S. Code clearly states that a militia can consist of just individuals.
To further look at the word “people,” or perhaps better, “right of the people,” we can look at other places in the Constitution where the phrase is listed. It is listed four times in the Constitution, one being the First Amendment. The courts have constantly opined that the First Amendment’s “right of the people” is allowed to every individual. Defining “right of the people” as a collective right to practice religion and the federal government can regulate the individual right to practice religion, or free speech,[9] would make little sense. Thus, the phrase right of the people must mean an individual's right, or else it is defined differently in each amendment, which would cause confusion. There is no basis for having different definitions for "right of the people."
A second point to consider is to look at the power the Constitution grants Congress. The Constitution’s eighteen enumerated powers of Congress states “[to] regulate[10] Commerce with foreign Nations, and among the several States, and with the Indian Tribes…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” [11] These powers are generally used in defense of gun control regulations by the federal government. The Gun-Free School Zone Act of 1990 was passed in hopes of regulating guns, and therefore gun violence. In a court case where a twelfth-grade student brought a gun to school the federal government charged the student under this law. The courts sided with the twelfth-grader because the federal government cannot regulate guns when it is an intrastate affair. Therefore, the federal government law was unconstitutional when enforced in only local matters.[12] However, the federal government can regulate sales transactions crossing two or more states, but the regulations on guns are limited by the Second Amendment.
Another case to cite is Printz v. United States (1997). Two state law enforcement agents took the “Brady Bill” to court, questioning whether or not the federal government could actually require state agents to carry out mandates. The Supreme Court ruled it unconstitutional as Justice Scalia opined, “[r]esidual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones. Article I, Section 8, which [by] implication was rendered express by the Tenth Amendment’s assertion that ‘[t]he powers not delegated to the United states by the Constitution, no prohibition by it to the States, are reserved to the States respectively, or to the people.’”[13] This clearly states that unless a gun owner plans on selling or trading arms to another person across state lines, the federal government cannot pass any law to infringe on the individual’s arms. The Constitution does not allow for arms regulations, unless it is commerce that is across state lines.
The Federalist Papers were written in defense of the Constitution, which two stand out on the subject of the right to bear arms. Alexander Hamilton, who in his day was a big federal government proponent, wrote in Federalist No. 28, “[i]f the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of the individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government to arms, without concert, without system, without recourse; except in their courage and despair.”[14] James Madison, who wrote the Constitution, wrote in Federalist No. 46 “[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation…[where] the governments are afraid to trust the people with arms.”[15] The primary purpose of bearing arms was to have the ability to go toe-to-toe with the American government, and most likely its military. In order for the government and military to “fear” the citizens is for the citizens to have comparable weapons capability.
If Congress does create gun control regulation, they should do so properly and legally, by amending the Constitution. According to Vice President Biden most Americans want more gun control[16], and if Biden is correct an amendment could [relatively] easily pass.
Including the footnotes, one should also read the court opinions of US v. Emerson[17], US v. Verdug-Urquidez[18], Logan v. the US[19], Miller v. Texas[20], Robertson v. Baldwin[21], and Maxwell v. Dow[22]. For historical context, read Thomas Jefferson’s Proposed Virginia Constitution in 1764[23], and George Mason at Virginia’s U.S. Constitution ratification convention in 1788[24]. Legal Scholars under the flags of Liberal, Conservative, or Libertarian, have demonstrated that the right is individual, and that the law allows many of the “deadly” weapons that are currently under pressure to be discontinued: William Van Alstyne of Duke University, Akhil Reed Amar of Yale, the famous liberal Sanford Levinson of Yale[25], Harvard’s Laurence Tribe—a gun control advocate—and Don. B. Kates, Jr. Joseph Olson, a professor at Hamlin University School of Law, has also written extensively on the subject of gun control.[26]
[2] http://www.gpo.gov/fdsys/pkg/BILLS-103hr1025rh/pdf/BILLS-103hr1025rh.pdf
[3] 18
U.S.C. 922(g)
[4] 18
U.S.C. 921(a)(20)(A)
[5] Please
read the bill here: http://www.govtrack.us/congress/bills/113/s649/text
[7]
Napolitano, Andrew P. 2006. Constitution in Exile. Nashville: Nelson
Current. Pg. 56.
[8] http://www.law.cornell.edu/uscode/text/10/311.
My emphasis.
[9]
Napolitano, Andrew P. 2004. Constitutional Chaos. Nashville: Nelson
Current. Pg. 56.
[10]
Interestingly, the original term “regulate” was meant to repeal government
intervention. Under the Articles of Confederation, the states placed many rules
and laws so the flow of commerce was severely disrupted. The point and
intention of regulating interstate commerce was to keep government out of
commerce.
[12] Napolitano,
Andrew P. 2006. Constitution in Exile. Nashville: Nelson Current. Pg.
152-155.
[23] “No
man shall ever be debarred the use of arms.”
[24] “I
ask, sir, what is the militia? It is the whole people…To disarm the people is
the most effective way to enslave them.” James Madison also stated for
interpretation of the Constitution one should look to the State Conventions.
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