The issue of gun ownership has attracted a lot of controversy in the recent past, perhaps, due to the conflict between constitutional provisions in the Second Amendment and public policy.
The conflict between the two has been because the government may come up with a policy that does not adhere to the letter of the Second Amendment. Such a policy is a mistake on the part of the government since “the point of the constitutional law is to make it difficult for us to adopt some policies that seem to us to be good ones at the moment” (Tushnet 1).
This conflict between the provisions of the constitution in the Second Amendment and public policy is seen in the “District of Columbia v. Heller” (Tushnet 1) case in 2007, where the Supreme Court ruled that a D.C. law was unconstitutional.
It is vital to ensure that legislation related to gun ownership is clearly understood and that public policy is developed in line with the Second Amendment. This is because gun control may make the difference in the society by reducing the rates of homicides, robberies with violence and the like. This will make neighborhoods safer. This paper is an in-depth discussion of the constitutional issues surrounding gun control and gun ownership.
The Second Amendment
The Second Amendment provides that “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” (Tushnet 1). Both proponents and opponents of gun control consider the meaning of the Amendment to be clear to everyone. “According to gun-control advocates, the opening reference to a militia means that the right protected in the second clause is necessarily limited to keeping and bearing arms in connection with service in an organized militia.
According to gun-rights advocates, the second part of the Amendment protects an individual right, no different in kind from the right of free speech protected by the First Amendment” (Tushnet 1). Unfortunately, both groups are wrong about the Second Amendment. Interpretation of this amendment is not an easy task. This is because for correct interpretation, one has to determine how the operative clause, the second clause, is related to the Amendment’s preamble, the first clause. The truth of the matter is that either the operative is on condition of the fulfillment of the preamble or it is merely explained by the preamble.
Perhaps the most confusing word in the Second Amendment is the word militia. The advocates of gun control argue that militia refers those that are organized by the State. That is, the National Guard. They argue that the preamble of the Second Amendment refers to the militia organized by the state, and that the framers of the wordings were afraid that Congress might at one time decide to disarm the army.
Thus, they argue that the preamble was meant to ensure that state-organized militia would not ever be disarmed. On the other hand, the advocates of gun rights argue that militia refers to any civilian able to use a gun well, and thus they argue that the preamble of the Second Amendment gives civilians individual rights to gun ownership (Spitzer). Therefore, their view of the meaning of militia is the unorganized militia. From this discussion, it can be seen that the arguments of the advocates of gun rights are weightier than those of the advocates of gun control.
Another confusing word in the Second Amendment is “well-regulated” because without it, it would be easy to justify the Supreme Court’s decision to grant certificate of gun ownership to Heller after an appeal in the Federal appeals court was ruled in favor of the appellant. This is because the court’s ruling could be explained by the fact that with Heller being granted a certificate of gun ownership, he would strengthen the militia in his state, which is necessary for the State’s security.
Despite the confusion that the word “well-regulated” may bring, it is reasonable to assume that the process of issuing certificates, which is obviously composed of registration requirements, will carry out the regulation. Otherwise, if everyone was allowed to have any firearm he/she wants, the result will be a state of non-regulation. “Laws prohibiting the ownership of assault weapons and large-capacity magazines” (Hileman 1) also carry out the regulation. From this discussion it is clear that “gun laws containing certain registration requirements and laws prohibiting the ownership of assault weapons and large-capacity magazines” (Hileman 1) are constitutional in the United States.
Key court rulings
Courts of law have interpreted the Second Amendment on the ownership of firearms in several court cases. Most of these cases have demonstrated that this Amendment is one of the most controversial Amendments, with different courts giving different rulings. Most of these cases were appeals, illustrating the controversy surrounding the issue of gun ownership and the Second Amendment. The key court cases are listed below.
- United States v. Cruikshank. The Supreme Court heard this case in the year 1896. The ruling of the case was that The Congress could not legislate against the interference of gun ownership rights by a private individual or organization.
- Presser v. Illinois. The Supreme Court heard this case in the year 1886. The ruling of the case was that individuals are only protected from interference of their right to bear arms by the Federal government but not interference by the State government (Tushnet 1).
- United States v. Miller. The Supreme Court heard this case in the year1939. The Constitution does not protect non-militia ownership of firearms by individuals.
- United States v. Emerson. The Atlanta appeals court heard this case in 2002. The ruling of the case was that despite the protection for ownership of firearms by the Second Amendments, a law that prohibits a person from firearm possession due to a domestic-abuse protection order is constitutional.
- Silveira v. Lockyer. The Californian appeals court heard this case in the year 2002. The ruling of the case was that “The Second Amendment does not protect an individual’s right to possess firearms but does protect state’s rights to protect themselves” (Tushnet 1).
- District of Columbia v. Heller. The D.C. appeals court heard this case in the year 2007. The ruling was that a D.C. law that prohibited individuals from possessing handguns was unconstitutional.
From the above rulings, it is clear that each case of gun ownership is unique and thus the interpretation of the Second Amendment is done in such a way that it upholds the spirit of the constitution. Otherwise, if one case were used as a precedent for all gun possession cases, there would be instances of unfair and unjust rulings.
The issue of gun ownership is a very sensitive issue. The way the courts interpret the Second Amendment may draw the thin line between increased rates of crime and a secure nation. With proper gun control and appropriate certification of gun ownership, the U.S. will be able to avert the unfortunate cases of school shootings, homicides, murders, vendettas among criminal groups and drug cartels, and the like.
It is therefore, of great essence that the Second Amendment is taken seriously and that the interpretation of the Second Amendment is guided by the spirit of the constitution because there is a lot of confusion in the letter of the Second Amendment. It is common knowledge that with proper gun control, incidences of robberies at gunpoint, illegal possession of firearms, homicides, murders, and the like will be greatly reduced. This will in turn lead to less people being imprisoned, which will in turn help to reduce the congestion in the prisons of the states of the U.S.
As the government comes up with public policy related to gun ownership, it should be guided by the Second Amendment to avoid instances in which unconstitutional policy is developed. This is because if such policy is developed, civilians can challenge it in courts of law and the government will lose its revenue as it pays damages and court costs. This will in fact be double loss because developing policy is also a costly exercise. In essence, policy should be guided by the constitution and instances of policies that tend to contradict the law should be avoided as much as possible.
Hileman, Ashley. “Federal appeals court upholds DC gun laws”. Paper Chase. 2011.
Spitzer, Robert. Gun control: a documentary and reference guide. C.T. Greenwood Publishing Group, 2009. Print.
Tushnet, Mark. “Interpreting the Right to Bear Arms – Gun Regulation and Constitutional Law”. The New England Journal of Medicine. 2008.