2. Introduction
The 2nd Amendment protects the right of the
people to keep and bear arms
Are people allowed to bear arms only if they
are part of a militia or defending this country?
Can anyone posses a gun at any time?
Can guns be used for national defense but
not for self-defense?
These are some questions that are part of an
ongoing debate over gun control and the 2nd
Amendment
3. Introduction
The 2nd Amendment starts out stating, “A
well regulated militia…”
What is a militia?
It is an armed group of citizens who defend their
community as emergencies arise
4. Historical Background
The Constitution was drafted in a time
when fear of tyranny from a strong central
government was uppermost in the new
American’s minds.
In the colonial times, there was no
permanent army
There was a lack of funding
Lack of personnel
Organizational challenges
5. Historical Background
The colonists were on their own and needed
to be prepared when Britain was going to
challenge their new country.
The result was to form state militias.
They were consisted of able body adult male
civilians and some professional soldiers.
They did not encompass the entire national
population, but they did provide necessary
protection and a sense of security.
6. Historical Background
Militia members were not allowed to keep
arms, but were at times required to do so
by law.
If the members were called to service,
they were to bring their own arms and
ammunition.
Some states mandated that all male
citizens between certain ages be
members of the militia.
7. The Debate
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 state.
They are armed with government-supplied and
owned sophisticated weaponry.
8. The Debate
Modern –Day Militias in the United States
1992- Ruby Ridge
1993- the Branch Davidians
1996- “Freemen”
Research shows an increasing amount of
militia groups
9. The Debate
Most people feel like those over 200 years
ago.
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.
There are two opposing interpretation of the
2nd Amendment:
1.
2.
Does the amendment guarantee individual’s
right to keep and bear arms?
Does it guarantee the states freedom from
federal government infringement on this right?
10. The Debate
The phrasing (clauses) of the 2nd Amendment
into two parts is what causes the biggest
debate
Operative clause
Identifies
that action to be taken or prohibited
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
11. 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 states.
They also claim that the framers of the
constitution intended to preserve individual rights
above state rights.
12. Individual Rights
This amendment is placed very close to our
other individual rights, however, the states are
not mentioned until the 10th Amendment.
James Madison stated that the amendments
were to relate first to private rights.
Arms were such a pervasive part of colonial life
that five state conventions recommended an
amendment to guarantee the right to bear arms.
The courts throughout history have consistently
rejected the individual rights view in favor of the
state’s rights interpretation.
13. State’s Rights
Those favoring the state’s rights interpretation
see the 2nd Amendment as protecting and
modifying Article 1, Section 8 of the
Constitution
Commerce Clause – provides the legal
foundation for much of the federal government’s
regulatory authority
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
14. State’s Rights
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.
15. Early Case Law Regarding the
nd
2 Amendment: A Slow Start
Federal regulation of firearms was nonexistent
for many years
Unite d Sta te s v. Cruiks ha nk (1875)
The first notable case involving the 2nd
Amendment
The U.S. Supreme Court responded to a claim of
the right to bear arms for a lawful purpose, ruled:
“This
is not a right granted by the Constitution….The
2nd Amendment declares that is shall not be infringed,
but this, as has been seen, means no more than it
shall not be infringed by Congress”
16. Early Case Law Regarding the
nd
2 Amendment: A Slow Start
The National Firearms Act of 1934 was established
because the federal government made an effort to regulate
the possession of firearms, because the Court had little
reason to interpret the amendment
This act was the first in federal regulation
Unite d Sta te s v. M r (1939)
ille
First, the district court granted Miller a demurrer
Request that a suit be dismissed because the facts do
not sustain the claim against the defendant
The US appealed the demurrer
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
17. Early Case Law Regarding the
nd
2 Amendment: A Slow Start
The courts continued to interpret the 2nd
Amendment this way
Ste ve ns v. Unite d Sta te s (1971)
The courts ruled that there was no express right
of an individual to keep and bear arms
18. 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. Em e rs o n (1999)
A district court went against all federal court
precedent
Claimed the 2nd Amendment guaranteed the
individual’s right to keep and bear arms
19. A Shift in Interpretation:
The Heller Decision
Dis tric t o f Co lum bia v. He lle r (2008)
The Supreme Court picked this case to evaluate
a law in DC that banned handgun possession.
Law requires residents to keep lawfully owned
firearms unloaded and disassembled.
The Supreme Court held that the 2nd Amendment
protects an individual’s right to possess a firearm
unconnected with service in the militia.
First
time ever
Ruling has had little impact on federal gun control
laws
20. Incorporation of the Second
Amendment
The 2nd Amendment remained unincorporated until 2010
M Do na ld v. Chic a g o (2010)
c
The City of Chicago banned almost all handgun
possession by private individuals.
Mr. McDonald argued that this left him vulnerable to
criminals.
The Supreme Court held that the 14th Amendment
incorporates the 2nd Amendment right.
The right to keep and bear arms was among the
fundamental rights necessary to our system or order
liberty, the 2nd Amendment applies to the states.
21. 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?
Concealed Carry Laws
Castle Laws
Restrictions on Types of Firearms
22. Variation in State and Local Gun
Laws
Concealed Carry Laws
Some states have laws that say carrying a
concealed weapon is a citizen’s basic right.
They allow for people to easily obtain a permit.
•
Not mentally ill
•
Have not violated certain laws
Some states require the completion of training
courses to get a CCW.
Some states have gun free zones around
schools, hospitals, etc…
23. States and the 2nd Amendment
Unite d Sta te s v. Lo p e z (1995)
This case found the federal law banning guns
near schools to be unconstitutional.
The Supreme Court struck down the Gun-Free
School Zones Act.
Justice Department lawyers argued that the law
was legitimate extension of Congress’ power to
regulate interstate commerce.
Chief Justice Rehnquist said, “the law has nothing
to do with commerce or any sort of enterprise.”
24. 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.
Some jurisdictions include anything that
explodes or projects anything, including
paintball guns and bow and arrows.
25. Federal Regulation and the 2nd
Amendment
Congress, using its broad authority to regulate
interstate commerce, has enacted some federal
gun control legislation
1938, the Federal Firearms Act
1967, the Omnibus Crime Control and Safe Street Act
Required dealers shipping firearms across state lines and
importers to be licensed by the federal government
Made possession of firearms by convicted felons unlawful
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
26. Federal Regulation and the 2nd
Amendment
Sm a ll v. Unite d Sta te s (2005)
The Supreme Court has ruled that the federal law
that bars gun ownership by convicted felons does
not apply to those convicted in foreign countries
27. The Brady Act
November 30, 1993
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 in 1998 with
the permanent provision of an instant,
computerized criminal background check on
all handgun purchasers
Some states still impose a waiting period on
firearms purchases
28. The Brady Act
Printz v. Unite s Sta te s (1997)
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
According to the Court, the background check
provision violated the principle of separate state
sovereignty
29. 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 clause
A set ending time for legislation that is not renewed to
prevent old law from remaining on the books
30. 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
To establish equality between local LEOs and
their federal counterparts who already carry
nationwide.
To create an unpaid homeland security force to
help protect the nation.
To allow qualified current and retired LEOs the
31. Other Proposed Federal
Legislation
Recent proposed legislation
Denying Firearms and Explosives to Dangerous
Terrorists Act
Aims
to prohibit those who are on the terror watch list
from purchasing firearms
Gun Show Background Check Act
Would
require vendors at gun shows to hold a federal
firearms license and to conduct background checks
Gun Show Loophole Closing Act of 2009
Claims
sellers
that it is too easy to buy guns from unlicensed
32. The Current Gun Control
Debate
In opposition to Gun Control:
The common argument about gun control is that
claim that such laws will only put guns where they
do not belong—in criminal’s hands.
The founding fathers wrote the 2nd Amendment to
protect citizen’s right to defend themselves
against oppression.
When people are disarmed, government tyranny
and oppression thrive.
33. The Current Gun Control
Debate
In Support of Gun Control:
The Fraternal Order of Police to this issue as
“crime control” not “gun control”
They
support regulations consistent with the laws,
but they do not support any new firearm legislation
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 arms
34. The Current Gun Control
Debate
In Support of Gun Control:
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.
Guns are not the root cause of violence, but their
usage increases the lethality of violence.
35. 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.
