Michelle PalaroCJUS 2360Fall 2015

A Foundation for Understanding Constitutional Law

Chapter 6The Second Amendment

Introduction The 2nd Amendment starts out

stating “A well-regulated militia…”

What is a militia?o It is an armed group of citizens

who defend their community as emergencies arise

Historical Background A central controversy over the 2nd Amendment is

whether people have a right to bear arms as individuals, rather than only as part of a militia

In 1794, the militia was made up of free male citizens, armed with muskets, bayonets and rifles

Today, the militia is considered to consist of the National Guard units in every stateo They are armed with government-supplied

and owned sophisticated weaponry Also, the United States has a standing army,

mooting the need for a widespread armed citizenry on call

The Debate Modern Day Militias in the United

Stateso 1992 - Ruby Ridgeo 1993 - the Branch Davidians (Waco)o 1996 - “Freemen”o Research shows an increasing amount of

heavily armed militia groupso The “Patriot” movement conducts

paramilitary training and demonizes the federal government

o Some of these groups are considered domestic terrorist threats

The Debate Some people feel the government has become

too powerful and that individuals need to reclaim that power, often with the firearms they believe they are entitled to possess

Others point to the mass shootings at Newtown, Columbine, Aurora, Tucson, Virginia Tech and elsewhere justify overdue gun control legislation

There are two opposing legal interpretations of the 2nd Amendment:1. Does the amendment guarantee individual’s

right to keep and bear arms?2. Does it guarantee the states freedom from

federal government infringement on this right?

The Debate, cont’d The phrasing (clauses) of the 2nd

Amendment into two parts is what causes the biggest debateo Operative clause• Identifies that action to be taken or

prohibitedo Prefactory clause• Announces a purpose, but does not

necessarily restrict the operative clause• The debate surrounding the 2nd Amendment

centers around the prefactory clause and the intentions of the founding fathers

Individual Rights Proponents of “the right to bear arms”

endorse an individual rights interpretation that would guarantee that right to all citizens

These proponents see the amendment as primarily guaranteeing the right of the people, not the stateso They also claim that the framers of the

constitution intended to preserve individual rights above state rights

o The courts throughout history have consistently rejected the individual rights view in favor of the state’s rights interpretation

State’s Rights Those favoring the state’s rights

interpretation see the 2nd Amendment as protecting and modifying Article 1, Section 8 of the Constitutiono Commerce Clause – Provides the legal

foundation for much of the federal government’s regulatory authority

o Grants Congress the power “to provide for the calling forth of the Militia to execute the laws of the Union”

The purpose of the amendment is obviously to “assure the continuation and render possible the effectiveness of such forces”

State’s Rights, cont’d State’s rights proponents claim that the

2nd Amendment was adopted with the primary purpose of preserving the state militia

The courts have consistently interpreted the 2nd Amendment as allowing states to regulate private gun ownership

The amendment preserves the state’s power to defend against foreign and domestic enemies, and it also reduces the need for a large standing army

United States v. Cruikshank , 92 U.S. 542 (1875)

Facts: An armed group of whites killed over 100 black freedmen and were convicted under federal law of conspiring to hinder the freedmen’s right to bear arms

Issues: Can individuals be found guilty of crime of infringing on civil rights?

Holding: No Rationale: The Court held that the 14th

Amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another

http://en.wikipedia.org/wiki/United_States_v._Cruikshank

Early Case Law Regarding the 2nd Amendment: A Slow Start

The National Firearms Act of 1934 was established because the federal government made an effort to regulate the possession of firearmso This act was the first in federal regulation

United States v. Miller (1939)o First, the district court granted Miller a demurrer

• Requested that a suit be dismissed because the facts do not sustain the claim against the defendant

• The U.S. appealed the demurrer and certiorari grantedo The Supreme Court recognized a state right rather than

an individual right to bear arms• This case indicates that the amendment protects only arms

that bear some relation to preserving the militia

Stevens v. United States , 440 F.2d 144 (6th Cir 1971)

Facts: A law prohibited possession of firearms by convicted felons

Issues: Does this law violate the 2nd Amendment?

Holding: The courts ruled that there was no express right of an individual to keep and bear arms

Rationale: Citing U.S. v. Miller as authority for this conclusion, the court undertook no analysis of Miller or of the history of the ratification of the Second Amendment. This case, moreover, involved possession of firearms by convicted felons, a class of persons whose right traditionally have been more restricted than law-abiding citizens

A Shift in Interpretation: The Heller Decision

Since the Miller case in 1939, there have been more than 30 cases involving the 2nd Amendment

In every case, except one, the courts have held that the amendment refers to the right to keep and bear arms only in connection with a state militia

U.S. v. Emerson (1999)o A district court went against all federal court

precedento Claimed the 2nd Amendment guaranteed the

individual’s right to keep and bear arms

District of Columbia v. Heller, 554 U.S. 570 (2008)

District of Columbia v. Heller, 554 U.S. 570 (2008), cont’d

Facts: DC law required residents to keep lawfully owned firearms unloaded and disassembled

Issues: What rights are protected by the Second Amendment?

Holding: The Supreme Court held that the 2nd Amendment protects an individual’s right to possess a firearm unconnected with service in the militiao First time evero Ruling has had little impact on federal gun

control laws

Incorporation of the Second Amendment

The 2nd Amendment remained unincorporated until 2010

McDonald v. Chicago (2010)o The City of Chicago banned almost all handgun

possession by private individualso Mr. McDonald argued that this left him

vulnerable to criminalso The Supreme Court held that the 14th

Amendment incorporates the 2nd Amendment right

o The right to keep and bear arms was among the fundamental rights necessary to our system of ordered liberty, the 2nd Amendment applies to the states

Variation in State and Local Gun Laws

States retain the right to impose stricter regulations related to firearms than those required by the federal government

How do states differ?o Concealed Carry Lawso Castle Lawso Restrictions on Types of Firearms

United States v. Lopez , 514 U.S. 549 (1995)

United States v. Lopez , 514 U.S. 549 (1995), cont’d

Facts: The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any individual knowingly to possess a firearm at a place that he knew or had reasonable cause to believe was a school zone. Alfonso Lopez, Jr. (D), a 12th-grade student, carried a concealed and loaded handgun into his high school and was arrested.

Issues: Does the GFSZA exceed Congress’ authority under the Commerce Clause?

Holding: The Supreme Court struck down the GFSZA

Rationale: The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce

Restrictions on Types of Firearms

Some weapons, such as fully automatic machine guns or those altered to be more conductive to criminal activity, such as sawed-off shotguns, have always been illegal for most people to own

What exactly constitutes a weapon or firearm has not been easily defined

Federal Regulation and the 2nd Amendment

Congress, using its broad authority to regulate interstate commerce, has enacted some federal gun control legislationo 1938 - the Federal Firearms Act

• Required dealers shipping firearms across state lines and importers to be licensed by the federal government

o 1967 - the Omnibus Crime Control and Safe Street Act• Made possession of firearms by convicted felons unlawful

o 1968 - Gun Control Act• Banned federal licensees from selling firearms to

prohibited persons• Under indictment for or convicted of a felony• A fugitive• A drug user

The Brady Act November 30, 1993

o President Clinton signed the Brady Handgun Violence Prevention Act

Contained the interim provision of a mandatory five-day waiting period on all handgun purchases

This provision was phased out on November 30, 1998 with the permanent provision of an instant, computerized criminal background check on all handgun purchasers, except those made at gun shows

Some states still impose a waiting period on firearms purchases

Printz v. Unites States , 521 U.S. 898 (1997)

Facts: The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks on prospective handgun purchasers

Issues: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks?

Holding: Supreme Court ruled that the federal government was not empowered to require state or local law enforcement agencies to run background checks on prospective gun buyers

Rationale: According to the Court, the background check provision violated the principle of separate state sovereignty

http://en.wikipedia.org/wiki/Printz_v._United_States

The Violent Crime Control and Law Enforcement Act of 1994

This Act banned the manufacture of 19 different semiautomatic guns with multiple assault-weapon features

It prohibits transfer to or possession of handguns and ammunition by juveniles

It prohibits possession of firearms by people who have committed domestic abuse

It provides stiffer penalties for criminals who use firearms to commit federal crimes

This ban expired with a sunset clauseo A set ending time for legislation that is not

renewed to prevent old law from remaining on the books

The Law Enforcement Officers Safety Act

Allows qualified off-duty and retired officers to carry concealed weapons throughout the country, regardless of state or local firearms restrictions

Goals:o To establish equality between local LEOs and

their federal counterparts who already carry nationwide

o To create an unpaid homeland security force to help protect the nation

o To allow qualified current and retired LEOs the means to defend themselves and their families

Other Proposed Federal Legislation

Recent proposed legislationo Denying Firearms and Explosives to

Dangerous Terrorists Act• Aims to prohibit those who are on the terror watch list

from purchasing firearmso Gun Show Background Check Act

• Would require vendors at gun shows to hold a federal firearms license and to conduct background checks

o Assault Weapons Ban (2013)• Would have reinstated the 1994 controls, but was

dropped from the Senate gun control bill

The Current Gun Control Debate

In opposition to Gun Control:o The common argument about gun

control is the claim that such laws will only put guns where they do not belong - in criminal’s hands.

o The founding fathers wrote the 2nd Amendment to protect citizen’s right to defend themselves against oppression

o When people are disarmed, government tyranny and oppression thrive

The Current Gun Control Debate, cont’d

In Support of Gun Control:o The Fraternal Order of Police refer to this issue as

“crime control” not “gun control”• They support regulations consistent with the laws, but they

do not support any new firearm legislationo The U.S. Constitution is proof that individuals have the

right to own firearms• However, court case rulings do not grant individuals the

right to own armso Background checks for all gun purchases (including

those at gun shows from unlicensed dealers) is a reasonable way to keep weapons out of the hands of criminals

o Gun control is also a way to control violence given the amount of firearms related accidents

The Current Gun Control Debate, cont’d

In Support of Gun Control:o History shows that the 2nd Amendment was

written to protect colonists from England’s King George III’s military forces and contains nothing that could be constructed today as prohibiting gun control

o Guns are not the root cause of violence, but their usage increases the lethality of violence

o Limiting purchases of assault weapons and semi-automatic handguns with high-capacity magazines, used in many mass shootings, has a small impact on individual rights but large impact on public safety

Finding Common Ground—Is a Compromise Possible?

Gun control by the states is not constitutionally prohibited

Legislation by the federal government is not prohibited

It looks like the courts will continue to defer to the discretion of the states on gun control matters