Chapter 6 lecture notes, videos, and websites

1.  
Michelle Palaro
CJUS 2360
Fall 2015
Chapter 6
The Second
Amendment

2.  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

3.  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
o 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

4.  Modern Day Militias in the United States
o 1992 - Ruby Ridge
o 1993 - the Branch Davidians (Waco)
o 1996 - “Freemen”
o Research shows an increasing amount of
heavily armed militia groups
o The “Patriot” movement conducts paramilitary
training and demonizes the federal government
o Some of these groups are considered domestic
terrorist threats

5.  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?

6.  The phrasing (clauses) of the 2nd Amendment
into two parts is what causes the biggest debate
o Operative clause
• Identifies that action to be taken or prohibited
o 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

7.  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
o 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

8.  Those favoring the state’s rights interpretation
see the 2nd Amendment as protecting and
modifying Article 1, Section 8 of the Constitution
o 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”

9.  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

10.  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

11.  The National Firearms Act of 1934 was established
because the federal government made an effort to
regulate the possession of firearms
o 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 granted
o 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

12.  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

13.  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
precedent
o Claimed the 2nd Amendment guaranteed the
individual’s right to keep and bear arms

15.  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
militia
o First time ever
o Ruling has had little impact on federal gun control
laws

16.  The 2nd Amendment remained unincorporated until 2010
 McDonald v. Chicago (2010)
o The City of Chicago banned almost all handgun
possession by private individuals
o Mr. McDonald argued that this left him vulnerable to
criminals
o 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

17.  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 Laws
o Castle Laws
o Restrictions on Types of Firearms

19.  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

20.  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

21.  Congress, using its broad authority to regulate interstate
commerce, has enacted some federal gun control
legislation
o 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

22.  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

23.  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

24.  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
o A set ending time for legislation that is not renewed to
prevent old law from remaining on the books

25.  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

26.  Recent proposed legislation
o Denying Firearms and Explosives to Dangerous
Terrorists Act
• Aims to prohibit those who are on the terror watch list from
purchasing firearms
o 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

27.  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

28.  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 legislation
o 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
o 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

29.  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

30.  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