Comment & Debate
In 1976, the District of Columbia City Council banned the possession of handguns not already possessed and registered by residents, and the use of any gun for self-defense. On March 9th, 2007, in District of Columbia v. Heller, a federal appeals court overturned the District of Columbia’s ban. It was considered by MSNBC to be “the most important ruling on gun control in 70 years”[1], largely because it rejected the city’s argument that the Second Amendment right to bear arms applied only to militias. The case soon came before the Supreme Court. On March 18th, 2008, the U.S. Supreme Court held a hearing to listen to arguments made by attorneys to either uphold the ban or to declare it unconstitutional. The Supreme Court is expected to decide on the case in June 2008. Many of the arguments in this debate surround the Second Amendment: “A well regulated militia, being necessary to the security of a free State, the right of the people to bear Arms, shall not be infringed.” A number of questions frame the debate on the Second Amendment. Does the Second Amendment only confer a right to militias to bear arms, or does it confer an unfettered individual right to bear arms? What kinds of arms are necessary to “a well regulated militia” and “the security of a free state”? Would bazookas be included, making the right to own a handgun obvious and the DC ban ludicrous? Is it important in the modern day to offer citizens a right to gun ownership for the purpose of protecting against government tyranny? Would handguns be a necessary part of this citizen check against tyranny? For self-defense, does the Second Amendment confer an individual right to bear arms of all kinds, or only a limited selection of arms? What kinds of arms are necessary to an individual’s ability to defend themselves and their family? Are handguns necessary? Do arms, and the right to bear them, increase violence, crime, and murder rates. Does it generally decrease public safety? Or, does the right to bear arms and carry handguns empower good citizens to take action against, “check”, and generally deter bad citizens from committing crimes? Are handguns particularly conducive to ganster violence because they are concealable? Or is this also what give them a power to deter gangsters (creating a fear and uncertainty among criminals that good citizens are carrying them)? Are DC’s circumstances exceptional? Does its history of crime and violence warrant exceptional measures such as a handgun ban? Does its status as the nation’s capital also mean that exceptional cautions must be taken?
The language of the Second Amendment creates a situation in which the right to bear arms applies only to the militia. The second amendment reads, “A well regulated militia, being necessary to the security of a free State, the right of the people to bear Arms, shall not be infringed.” The first clause clearly qualifies any right to bear arms as solely for the purpose of maintaining “a well regulated militia” for “the security of a free state”.
If the intentions of the framers had been to protect an individual right to bear arms, they would have clearly expressed this. Yet, the Second Amendment is not at all clear about an individual right to bear arms. The natural reading of the clause would indicate that the right relates only to the first, qualifying clause that states, “A well regulated militia, being necessary to the security of a free State…”. It is a stretch to read into the language an individual right. If this was the case, why wouldn’t they simply have explicitly stated that an “individual right to bear arms should not be infringed”.
– “One of the troublesome aspects of viewing this as a right of personal use is that that is the kind of fundamental liberty interest that would create a real potential for disruption. Once you unmoor it from — or untether it from its connection to the protection of the State militia, you have the kind of right that could easily be restrictions on State and local governments”…
Cases such as U.S v Miller that were brought to the Supreme Court have contributed to making significant differences of the context in which the Second Amendment can be applied. In Us vs Miller the court established that the Second Amendment “did not guarantee a citizen’s right to posses a sawed-off shotgun”
– “JUSTICE GINSBURG: If we’re going back to the English Bill of Rights, it was always understood to be subject to the control and limitation and restriction of Parliament. And I don’t think there’s any doubt about that. And that’s what we’re talking about here, are legislative restrictions.”
On March 9, 2007 in a blockbuster opinion, the U.S. Court of Appeals for the D.C. Circuit overturned the city’s gun ban, holding that “the Second Amendment protects an individual right to keep and bear arms.”[2]
“JUSTICE SCALIA: I don’t see how there’s any, any, any contradiction between reading the second clause as a — as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.”
“Now, what I think is happening is that two different rights are being put together. One was a textual right to protect the militia. I think the better argument for the — for the other side, for Mr. Heller, is that the amendment’s purpose is militia protective, but it was overinclusive in the way that several of you have suggested, and that is that, as the court below said, preserving the individual right, presumably to have guns for personal use, was the best way to ensure that the militia could serve when called.
A federal appeals court ruled on March 10th that the District’s longtime ban on keeping handguns in homes is unconstitutional. For the first time a federal appellate court that declared that based on the 2nd Amendment the gun control law in DC was unconstitutional.
“JUSTICE KENNEDY: You think Madison was guided by the experience and the expressions of the right in English law, including the Bill of Rights of 1689?
GENERAL CLEMENT: I do, Justice Kennedy, and I think in that regard it is telling that — I mean, there are a variety of provisions in our Bill of Rights that were borrowed from the English Bill of Rights. Two very principal ones are the right to petition the government and the right to keep and bear arms. I don’t think it’s an accident.”
The notion involved in the “militia” clause of the 2nd amendment is that it is important for citizens to have the right to form a militia in order to combat a tyrannical government, and presumably its army. In the modern day, this would require that a militia be capable of mustering powerful firearms, including tanks and bazookas, such that they could combat the modern power of the US military. Based on this interpretation, what use would handguns be to a militia, whose inherent purpose is to combat or check the most powerful military the world has ever seen? The handgun would provide negligible use to such a militia, and so has little value in upholding any right the 2nd amendment offers to individuals to form a militia. This makes the banning of handguns in Washington, DC of little consequence to the integrity of the 2nd amendment’s militia clause.
Congress has the power and authority to disarm a militia. This is necessary to uphold the monopoly on military force in the state and to protect the integrity of the state. It also should be recognized that a militia could take a form that is entirely “inappropriate” and contrary to the interests of the vast majority of the citizenry. Such a militia might claim that the state is acting “tyrannically” because it is acting “democratically”, instead of according to the prescript of God. 99% of citizens might oppose the existence of this militia. Is the Second Amendment meant to protect the existence of such a militia? No. Congress has the authority to disband it. Therefore, the right to form a militia is in question, making a ban on hanguns more appropriate, as it does not conflict with any supposed right to form a militia.
The difference in the technology the military now employs versus the personal guns individual civilians can have access to is exponentially greater than in the framer’s time. This means that in today’s reality the Second Amendment cannot apply to civilians with the purpose of preparing them to be part of the militia at any day or time.The huge technological advances and military training make it impossible for everyday citizens to be part of a defense force like the ” militia”.
The main intent of the Second Amendment of the constitution was to protect against domestic tyranny. An unfettered individual right to bear arms helps do so, by raising the potential costs to the government of engaging in tyrannical behavior. And, more to the point, it makes it possible for citizens to form a militia, as citizen gun-ownership is necessary to achieve this.
Historically, the militia that resisted the British was a non state managed association of people that were fighting against tyranny. The wording of the second amendment preserves the spirit of that time and therefore the word “militia” can be relevant to nowadays as a symbol of the right of people to fight against tyranny.In this way the spirit of the time is reflected in the letter of the law.
The constitution is the basis for allowing gun possession within the US society. All court decisions go back to the Second Amendment text and interpret it either by the spirit of the law or by the letter of the law. The actual possibility of possession of guns within the US society is guaranteed through the existence of the amendment per se. Constant interpretations and different conclusions drawn upon the same text mean that any radical decisions regarding banning guns can always be argued against based on the same text of the amendment.If consensus is reached about enacting such a change within society such as banning guns than it must be legitimized by a change in the constitution .In this will reflect a common will of the people in the foundation of all the legal system within the US i.e the constitution.
If the Second Amendment applied only to the collective right of the militia, it would be useless, as no militias exist today in America. It is highly unlikely that the Framers designed an amendment that could expire over time. Instead, their intention was to extend rights to individuals in the Constitution that are lasting.
There is little evidence that a handgun is a more effective as a means to self-defense than a rifle or a shotgun. At a minimum, there is nothing to suggest that a shotgun and a rifle are ineffective as self-defense weapons. Some suggest that a shotgun is actually a superior choice for purposes of self-defense as it is a more devastating weapon to an assailant than a handgun, which may only slightly impair an intruder.
The 2nd Amendment does not explicitly refer to a right to bear arms for the purpose of self-defense. It only explicitly refers to a right to bear arms for the purpose of upholding “a well regulated Militia, being necessary to the security of a free State.” The 2nd Amendment should not be read as conferring a right that it does not clearly confer; a right to arms for the purpose of self defense. Inferences are insufficient, particularly as evidence can be gathered regarding the intentions of the framers of the Constitution that could cut both for and against the notion that the 2nd amendment was intended to confer an individual right to bear arms for the purpose of self-defense. Because neither inference can be definitely deemed correct, the Constitution must be taken at its explicit word, which gives no mention to self-defense.
Modern legal scholarship posits that the amendment is the affirmation of the the individual freedom to posses guns and use them for self protection.James Madison’s original version of the amendment described the militia as comprised of people . This reflects the framer’s intent to extend this freedom to every citizen as a right to self protection .The amendment reflects the philosophical foundation of the American societies built as counter hegemonic culture formed and perpetuated by the preservation of freedom.
Criminals, who are able to acquire guns,irrespective of the illegality of doing so, welcome a ban on legal handgun ownership. This is because it decreases the risks that they will rob or attack a citizen that has a handgun, and whom may attack back.
U.S. Court of Appeals for the D.C. Circuit ruled, “Essentially, the appellants claim a right to possess what they describe as ‘functional firearms’, by which they mean ones that could be ‘readily accessible to be used effectively when necessary’ for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District’s authority per se to require the registration of firearms.”[3]
The majority of violent encounters occur on the street, versus in the home. Hand guns are a particularly important means to protecting one self on the street. This is primarily the case because handguns can be easily carried by law-abiding civilians, and concealed so as to avoid scaring other citizens. Shotguns and rifles do not share these characteristics.
Self-defense was a very likely element of the Framers’ thinking behind the second amendment. It conferred the right to bear arms for the sake of defending against wolves and bears. It also conferred the right to bear arms for the sake of defending against Indians. Additionally, concerns regarding crime and insecurity were very high in the uncertain first years of the Union, making it likely that the 2nd amendment was also intended by the framers to confer a right to protect against criminals.
Handguns are most needed for self-defense in the hands of citizens that are under the most threat, such as in DC’s crime-ridden streets. A ban on handguns in DC is contrary to this logic.
No individual rights are absolute. The right to free speech is not absolute. Libel, slander, and hate crime laws are examples of reasonable restrictions on this right. Similar restrictions can be placed on the right to bear arms. So, even if there is an individual right to bear arms, it is possible to consider the limited ban on handguns in DC as a reasonable restriction of this right.
“Professor Erwin Chemerinsky, then of Duke Law School and now dean of University of California, Irvine, believes that the regulation of guns should be analyzed in the same way “as other regulation of property under modern constitutional law” and “be allowed so long as it is rationally related to achieving a legitimate government purpose.” In the case of Washington, DC, the legitimate purpose at hand has been the extraordinarily high crime rate of the city, at the time when the ban was implemented in 1976 through today. By 1991, DC was considered the murder capital of the country, with 479 deaths that year, 81 deaths per 100,000. As such, it constituted and continues to constitute an exceptional case in the country, warranting exceptional measures, such as a handgun ban.
A right to bear arms is constitutionally enshrined. As such, it cannot be qualified for the purpose of practical considerations. Legislatures cannot regulate parts of it according to some “reasonableness” standard; the right is immutable. The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker, also known as The American Blackstone. He authored a set of law books in 1803 that annotated Sir William Blackstone’s Commentaries on the Laws of England (discussed at length later, under Colonial Rights), for American use, and that formed, in many cases, the sole legal written works read by many early American attorneys.[44] Tucker, the leading Jeffersonian constitutional theorist, was widely read, even by those who rejected his interpretation of the Constitution. In footnotes 40 and 41, he wrote: “The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government.”[4]
Hand guns are concealable as well as portable. This makes them ideal for criminals and murders that seek to be mobile with these weapons and surprise their victims without detection. Rifle’s and shotguns do not share this characteristic of portability and so are less dangerous.
The DC handgun ban did decrease crime and murder rates directly after the ban was passed. According to CBS news, “Homicides in the district did ebb over the next few years, largely following a national trend. In 1977, the U.S. Conference of Mayors reported robberies, assaults and homicides using handguns had fallen sharply in D.C. and concluded the ban was working. However, the results were challenged even by the city’s police department, which said police tactics had contributed to the drop.”[5]
A 1991 University of Maryland study by criminologists in the New England Journal of Medicine suggested the gun ban had saved lives in the decade before 1991, even despite the fact that the number of deaths in the city had risen to 479 that year, 81 deaths per 100,000, earning it the title of the murder capital of the country. They argued the ban had prevented 47 deaths per year in D.C., both suicides and murders.[6] The point of the study is that the handgun ban has had a marginal impact in reducing crime and murder rates. Any such decrease is important and valuable, however small the impact may be. D.C. Council chairman Sterling Tucker said in 2008, “We knew there were problems we couldn’t wipe out. But we had a little more control over it [with the handgun ban].”[7]
Legal scholar acknowledge that the individual right of keeping arms can be limited for the safety of the community.This limitation occurs through regulating the possession, use and tracing of guns within society.
It is empirically proven that the numbers of victims from gun related attacks or incidents far outweigh the number of instances when arms were used for self protection.This warrants the argument that the costs incurred on society through the usage of arms are higher the the benefits the possession of arms for self defense brings
It has been empirically proven that among countries of the world the ones with the lowest private ownership of handguns have a significantly lower homicide rate
When citizens have guns, criminals fear committing crimes due to the risk that they will be shot. Many studies indicate that this deterrent effect decreases violent crime rates. The correlation is not surprising.
Thomas Jefferson, Commonplace Book, 1774-1776[8] – “Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
The examples of Washington DC and New York show that with a gun ban law they are one of the most dangerous cities within the US. This leads to the conclusion that reality should have reinforced the reasoning that gunning bans provides more safety to the public. Absent of this confirmation one can argue that banning guns is not an effective way of ensuring public safety.”
The present large amount of guns within the US society and the even larger black market of guns provides the proof that inevitably post any banning of guns they will still be present in society. Their existence will be confined to an illegal paradigm where law abiding citizens will not have access. That will put them at the risk of loosing their lives by being without means of self-protection.
According to the statements of the DC police that an overwhelmingly amount of the homicides have been committed with handguns. This goes to show that even though the law has been enforced the harms have still occurred through the inevitable availability of guns.
The methodology of the studies has proven to be flawed. This goes to show that when arguments are supported by studies that support that the murder rate has decreased their validity and reliability is undermined by a flawed methodology.
Since the handgun ban was first implemented in 1976, more than 8,400 people have been murdered in the district. This is a fairly dramatic figure and demonstrates that the ban has not had a substantive effect in reducing crime rates.
DC is very small and very close to Maryland and Virginia, making it very easy for people to legally purchase guns outside of DC and bring them in. It also makes it very easy for blackmarket sales to occur.
There are a range of ways to decrease gun crime and murder in a city, including greater background checks, making sure that bad people don’t get guns, more police patrols, and various other alternatives. These steps should be taken before a ban, as a ban may be much more intrusive into the constitutional rights of citizens.
The handgun is used more commonly than any other weapons in self defense in the home. Roughly 80 percent of all self-defense occurs with handguns, according to some sources.[9] This is because it is small, can be easily stowed in a house where it may be of need, and because it is easy to wield and fire. To ban a weapon that is so important in self-defense would reduce the capacity of citizens to defend themselves, making citizens more vulnerable, and possibly inviting further robberies.
An individual right to bear arms can be interpreted to mean that individuals have the right to bear arms of some kind, but not necessarily every kind. Most would see bazookas as a class of arms that should not be widely held. But, this does not limit the right of individuals to bear other arms. Similarly, banning handguns will not limit the ability of individuals to bear a rifle or shotgun. Therefore, a ban on handguns only limits the right to bear arms, but does not seriously impair it.
There is a precedent for banning citizens from purchasing specific gun classes, such as fully-automatic weapons and heavy weaponry such as grenades and bazookas. It is, therefore, not reasonable to argue that it is unconstitutional to ban a class of arms such as handguns; it has already been done and is not disputed in many cases (such as with bazookas). The question, therefore, is simply whether banning handguns fits the reasonableness standard in the District of Columbia.
“Once it is determined – as we have done – that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them … That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.”
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