Does Gun Control Infringe on a Persons Constitutional Rights

Does Gun Control Infringe On a Persons Constitutional Rights

April 25, 2010

Does Gun Control Infringe On a Persons Constitutional Rights
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The right to bear arms has become a very controversial subject in the United States of America. Entangled with this, one of the most controversial papers in the history of the United States starts with, “We the people of the United States, in order to form a more perfect union.” The preamble to the Constitution clearly begins its premise by declaring it is speaking on behalf of the people. It does not start out “We the government.” Therefore, is it not logical everything that follows in the Constitution protects the rights of “all” people. The word militia is also a problem area for many, but when the forefathers wrote the Constitution, the militia consisted of everyday people who were not ruled by the government. Even the courts have decided in favor of an individual’s Constitutional right to bear arms. No matter how anyone wishes to approach it, gun control laws are designed to infringe upon an individual’s Constitutional right to bear arms.

Gun control advocates believe that the Constitution does not protect an individuals’ right to bear arms. Many people believe the second amendment only refers to the militias’ right to bear arms. Gun control advocates refer to the second amendment as the core strength of their argument that the Constitution does not protect all people’s rights to bear arms. 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."

People in favor of gun control insist that the word “people" in the second amendment refers to the people of the militia. According to Sanford Levinson (2000), “Those who favor vigorous control, including outright prohibition of the private ownership of handguns and other weapons, argue that the preamble to the amendment clearly rejects what has come to be called the "individual rights" view; instead, it limits any Constitutional protection to members of an official militia, as organized (and regulated) by state governments.”

Still other gun control proponents have argued that the word person is intended to mean the State National Guard Units. According to James D. Agresti (1999), “Gun control proponents have argued that the use of the word "people", in this amendment, refers not to the civilian population of the United States, but to the State National Guard Units.” Although gun control advocates may not agree on what body of people the second amendment refers to, one interpretation remains constant among them, the second amendment means anything but ordinary citizens.

Gun control proponents argue that the second amendment does not nullify a states right to establish reasonable laws to protect the public. As stated by William J. Krouse (2005), gun control proponents argue that the second amendment “does not guarantee a right that is absolute, but one that can be limited by reasonable requirements.” However, gun control proponents have no agreed upon major consensus regarding what the definition of “reasonable requirements” should be. Gun control advocates believe that the Constitution allows individual states to implement reasonable requirements for the ownership of guns, in order to protect its citizens from harm. William J. Krouse (2005), “Proponents of firearm restrictions have advocated policy changes on specific types of firearms or components that they feel are useful primarily for criminal purposes or that pose unusual risks to the public.” However, some gun control advocates have taken this a step further and are of the opinion ordinary citizens do not need a firearm that is not intended for hunting. Many gun control advocates believe that handguns are to easily concealed and conveniently portable that they pose a greater threat to the safety of all citizens than rifles do. Although gun control advocates are quick to cite how many deaths are caused by hand guns, they seem to leave out the full picture. While there have been more deaths caused by handguns than riffles, the number of deaths caused by all firearms have decreased significantly sense 1974 (See figure 1).

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Many people, including members of the NRA, believe the Constitution specifically outlines the right for “all individuals” to bear arms. They believe that the forefathers wrote the Constitution to protect all individuals from government tyranny. To properly interpret the motivation behind the Constitution, everyone must remember this country was founded in order to escape the tyranny of the English government. This country was founded on the freedoms of the people. “Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having, in direct object the establishment of an absolute Tyranny over these States.” Declaration of Independence (1776).

As previously mentioned, gun advocates concentrate on the second amendment to support their beliefs that it is not a Constitutional right for all individuals to bear arms. However, the ninth and fourteenth amendments also support the individual right to bear arms.” According to the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people." In other words, there may well be Constitutional rights not explicitly set forth in the Second Amendment (or in any other amendment or Constitutional clause, for that matter) Akhil Reed Amar (2008). The 14th amendment declared, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" Akhil Reed Amar (2008).

People in favor of the individual right to bear arms insist that the word “people" in the second amendment refers to all individuals. Throughout the entire Constitution, the reference to “people” is repeatedly used. To presume that the word “people” means something different in the various parts of the Constitution would be the same as calling the forefathers illiterate. For example, the 10th amendment declared, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Obviously, the word “people” in the 10th amendment refers to the everyday individual citizens.

Gun control opponents have argued that the word militia must be defined from the time in history that it was worded, and was intended to mean the individual persons protecting against the government not any group formed under the government. This is effectively explained by Akhil Reed Amar (2008), “By contrast, the Second Amendment harkens back to a lost 18th-century America, where citizens regularly mustered for militia service on the town square and where the federal army was rightly suspect.”

In properly defining and understanding the Constitution, a person must take into consideration what the forefathers believed about the right to bear arms or any other part of the Constitution. Two of the many people instrumental in the writing of the Constitution, James Madison, who proposed the second amendment, and Thomas Jefferson, the author of the Constitution, have made statements supporting an individual’s right to bear arms.

James Madison said, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." James D. Agresti (1999).

Thomas Jefferson said, "The Constitutions of most States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent..., or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." James D. Agresti (1999). Thomas Jefferson also said, "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. --Thomas Jefferson to William Stephens Smith, 1787.” James D. Agresti (1999). In the never-ending debate, regarding gun control versus the right to bear arms, the courts have inevitably been pulled into the debate. In several legal cases, the courts have decided in favor of an individual’s Constitutional right to bear arms, in order to protect themselves. The courts have also ruled in favor of removing certain gun laws, which they have ruled, infringed on a person’s right to protect themselves.

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In the District of Columbia versus.Heller, the Supreme Court ruled in favor of a person’s Constitutional right to bear arms. The court ruled, Cornell University (2008), “the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.” This court ruling, concerning an individual’s Constitutional right to bear arms, significantly defined what the forefathers intended for the people.

The Supreme Court, in the District of Columbia versus.Heller held, if the government tried to keep arms from the people; it would in effect keep arms from the militia. The prefatory clause comports with the Court’s interpretation of the operative clause. ”The “militia” was composed of all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people, in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.” Cornell University (2008).

The Supreme Court, in the District of Columbia versus.Heller, held that to make people render their firearms nonfunctional, was a violation of the second amendment right that gives all citizens the right to protect themselves in their own home. “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Cornell University (2008).

In the case of Nordyke versus King, the US Court of Appeals upheld that second amendment protected an individual’s right to bear arms. “The conclusion that the Second Amendment’s language supports an individual right to “keep and bear arms” is strengthened with consideration to the nature and meaning of the term “Militia.” The Second Amendment’s language indicates that the “Militia” rests upon the shoulders of the people. As Professor Akhil Amar has explained, “the militias were the people and the people were the militia.” US Court of Appeals (2003). The US Court of appeals stated that the second amendment protects the individual right to keep and bear arms against violation by state and local governments. “The Second Amendment serves at least the following two key purposes: (1) to protect against external threats of invasion; and (2) to guard against the internal threat that the Republic could degenerate to tyranny,” US Court of Appeals (2003). The US Court of Appeals (2003), held that the Due Process Clause in the fourteenth amendment, “which protects those liberties which are “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” protected the second amendment. Simply stated, the traditions and ways of living that the people have continued throughout their history will be upheld and protected.
The Constitution was written as an entire document. Each part of the Constitution supports and builds on the other. Therefore, it is unconstitutional to make a law or take away an individual’s right without weighing the Constitution in its entirety as well as the statements and beliefs of the people instrumental in creating the Constitution. Upon following the history of the Constitution, the people who took part in creating the Constitution and the decisions made in the courts regarding the Constitution, it becomes obvious that the purpose of the Constitution is to protect the rights of “all” individuals including their right to bear arms.

References

Agresti, James D., Gun Control Facts, Just Facts, June 10, 1999. Revised 6/27/08.

http://justfacts.com/guncontrol.asp

Amar, Akhil Reed (2008), Slate, Putting the Second Amendment Second Reframing

the Constitutional debate over gun control, from

http://www.slate.com/id/2186750/pagenum/all/#p2

Cornell University Law School Legal Information Institute, District Of Columbia et al. v.

Heller, from http://www.law.cornell.edu/supct/html/07-290.ZS.html

Declaration of Independence (1776) from http://www.constitution.org/usdeclar.htm

Krouse, William J.,(n.d). Gun legislation in the 109th Congress.(Column). null, Retrieved

from Gale: Academic OneFile (PowerSearch) database.

(n.d). Levinson, Sanford, Gun Control. Encyclopedia of the American Constitution,

31243-1244. Retrieved from Gale: Gale Virtual Reference Library (PowerSearch)

database.

The Constitution of the United States (1787). Constitution of the United States

(1787), 1. Retrieved from Academic Search Complete database.

United States Court Of Appeals For The Ninth Circuit, Nordyke versus King, February

18, 2003, Retrieved from

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

References: Agresti, James D., Gun Control Facts, Just Facts, June 10, 1999. Revised 6/27/08. http://justfacts.com/guncontrol.asp Amar, Akhil Reed (2008), Slate, Putting the Second Amendment Second Reframing Heller, from http://www.law.cornell.edu/supct/html/07-290.ZS.html Declaration of Independence (1776) from http://www.constitution.org/usdeclar.htm (n.d). Levinson, Sanford, Gun Control. Encyclopedia of the American Constitution, 31243-1244 The Constitution of the United States (1787). Constitution of the United States (1787), 1 United States Court Of Appeals For The Ninth Circuit, Nordyke versus King, February 18, 2003, Retrieved from