High school student David sent me this research paper on gun rights. “I am pro 2A,” David asserts, “but my essay takes a slightly moderate stance.” I’m 2A, but? Uh-oh. In the interests of his re-edumacation I asked young Master David if he would consent to having his magnum opus
corrected
graded by TTAG’s Armed Intelligentsia. He agreed. Your participation in this endeavor would be most appreciated.
The Right to Keep and Bear
The date is March 30, 1981, in Washington D.C. President Ronald Reagan waves to a crowd of reporters and civilians when suddenly six shots ring out, and the President’s limo speeds away. The news spreads fast. There has been an assassination attempt on the President. In the following days, weeks, and months, this event brought calls for stricter gun laws, and renewed the debate over whether the Second Amendment guarantees an individual right to keep and bear arms . . .
There is no doubt that guns are an integral part of American history. From the smoothbore muskets wielded by farmers in the Revolutionary War, to the M1 Garands carried by the valiant soldiers of the U.S. Military in WWII, to the 5.56x45mm rounds being sent “downrange” from the barrels of M4s and M16s in Afghanistan as this is being written, guns were a necessary part in the creation of our nation and continue to play an important role in protecting America abroad. But civilian ownership of guns in America is a dividing issue.
At the center of the debate is the Second Amendment to the U.S. Constitution. It reads: “A well regulated militia being necessary for the preservation of a free state, the right of the people to keep and bear arms shall not be infringed.” What is a militia? Who are “the people?” Many questions arise after reading the text. Those in favor of gun control tend to believe that the Second Amendment protects the right to bear arms as a collective right, meaning one reserved for the military. Those who support gun rights believe that the Second Amendment is meant to protect the right of individuals to bear arms. Also, there is debate as to whether this amendment has a fixed or evolving meaning, whether the specific intent of the Founders should control it’s current application.
The ability of the government to regulate the sale, possession, and use of firearms grew controversial in the years leading up to the American Revolution. The British realized that organized armed colonists could resist their oppressive regime, and began confiscating their weapons. One such effort to capture colonial arms and ammunition in Massachusetts sparked the Revolutionary War. Once the war was over, and the Framers set about drafting the Bill of Rights, they wanted to ensure that the government could not confiscate citizens’ arms, leading to the Second Amendment. The Revolution and the civilian militias provided the primary context for the Second Amendment.
The debate about whether the Second Amendment protected an individual right began in the Jacksonian era, when in response to the disarmament of British citizens in the mid to late 18th Century, legal experts began to describe the importance of the individual right (Tucker). The first laws that expressly prohibited certain individuals from owning firearms were passed soon after the Civil War, when Southern states enacted laws prohibiting blacks from owning firearms (Mississippi).
These laws were upheld by the Supreme Court, on the ground that the Second Amendment only prevented the federal government, not the states, from restricting citizen’s rights. But later the Court held that the Fourteenth Amendment’s Equal Protection Clause made laws prohibiting firearms ownership by certain groups of people unconstitutional (Linder). Then, in the early 20th Century, following the infamous St Valentine’s Day Massacre, where gangsters with automatic weapons killed seven members of a rival gang, federal legislation was passed regulating several types of “dangerous weapons” rather than classes of people.
The unified “gun control movement” known today got its start in the 1970’s. In 1974, The National Council to Control Handguns was formed, later renamed after James Brady, President Reagan’s Press Secretary who was permanently injured during the assassination attempt on the President. The Brady Campaign to Prevent Gun Violence is one of gun control’s largest and most ardent supporters. On the opposing side is the National Rifle Association, or NRA. Founded in 1871 as a marksmanship program for civilians and soldiers alike, the NRA had opposed stricter gun laws since the early 1900’s, but in the 1970’s they shifted their focus to actively lobbying against increased regulation (Gun Control, CQ).
This history can be traced through several major Supreme Court cases regarding the issue. The first of these cases is Presser v. Illinois in 1885. In this case, Mr. Presser organized an armed march of 400 German Americans through the streets in Chicago, where it was illegal for armed groups to parade without a permit. Presser thought this was unconstitutional, on the grounds that it violated the Second Amendment. The Supreme Court ruled that the law was constitutional, because the Second Amendment only protected citizens’ rights from restriction by the federal government (Sommers).
The second case to arise was United States v. Miller, in 1939. Two men were transporting a sawed-off, double-barreled shotgun across state boundaries without paying the necessary National Firearms Act (NFA) tax. When they were arrested, they were released because the lower court believed that the NFA was unconstitutional. The Supreme Court ruled that the men were guilty, because at the time a shotgun with a barrel less than 18 inches was not associated with the type of militia activity protected by the Amendment and therefore Congress could regulate the possession of such weapons (Sommers).
The third case to come to the Supreme Court on the issue of gun control was United States v. Lopez in 1995. A Texas high school student was carrying a handgun within a high school. Under the recently enacted Gun-Free School Zone Act, carrying a firearm inside of a school was a federal crime. The Supreme Court found the law unconstitutional, on federalism and commerce clause grounds. Federalism is the system central to American democratic theory that separates power between the federal and state governments.
Under this system, criminal law within the states is for the states themselves to control, outside of the federal government’s power. The commerce clause is part of Article 1, Section 8 of the US Constitution. The commerce clause allows Congress to regulate commerce “Among the states.” Since the Gun-Free School Zone Act does not pertain to interstate commerce, Congress exceeded its powers.
The fourth case to come before the Supreme Court was District of Columbia v. Heller in 2008. A D.C. man wanted to own a handgun for home defense, but believed he was effectively prevented from doing so because of D.C.’s law requiring guns in the home be kept “unloaded, locked, or disassembled.” In a pivotal decision and a victory for gun rights advocates, the Supreme Court ruled that the law was unconstitutional because it was an unreasonable restriction on the Second Amendment rights of D.C. citizens. Under this ruling, the individual right to keep and bear arms is protected by the Second Amendment.
The fifth case was McDonald v. Chicago in 2010. Similar to Heller, a Chicago man wanted to buy a handgun for home defense, but he could not do so because Chicago banned handguns. The Supreme Court found Chicago’s law unconstitutional, and established that states could not infringe upon the individual’s rights under the Second Amendment (McDonald v. Chicago).
State laws governing the private ownership of guns vary greatly. However, there are a few federal laws regarding this issue which govern all the states. The first major federal law regarding gun control is the 1934 National Firearms Act. Conceived as a response to the organized crime epidemic, the NFA regulated several types of weapons: machine guns, guns which fire more than one round per pull of the trigger; short barreled rifles (SBRs), rifles with barrels less than 16 inches; short barreled (or “sawed off”) shotguns, shotguns with barrels less than 18 inches; and silencers, devices that affix to the muzzle of a weapon and reduce the loudness of the sound made when firing. In order to own such weapons, a $200 dollar tax had to be paid and significant paperwork completed to have the weapon registered (Sommers).
The next major law enacted is the aptly named Gun Control Act of 1968. This established the Federal Firearms License system, putting an end to mail order firearms like the one that was used to assassinate President John F. Kennedy. In 1986, the Firearm Owner’s Protection Act was passed, which made machine guns manufactured after 1986 illegal for civilian ownership. For other guns, it included a “Safe Passage” provision, so that someone who is traveling from one state to another cannot be incarcerated for a firearms charge in a state with strict gun laws, if they are just passing through.
Enacted in 1993, the Brady Handgun Violence Prevention Act, also named after James Brady, requires persons to undergo a background check before purchasing a handgun. In 1994, the Federal Assault Weapons Ban was passed, which banned firearms with ‘military features’ such as a pistol grip or flash suppressor (a device which affixes to the muzzle of a weapon and reduces the visual signature of the weapon when firing) on a rifle, and restricted “high capacity” magazines.
The ban included a “sunset clause,” essentially an expiration date, causing the ban to end in 2004. Many attempts have been made to renew the ban, including one led by Senator Dianne Feinstein in 2012, however, all such efforts have failed. Some individual states, however, have passed their own Assault Weapons Bans, while other states have preempted such legislation from being passed in the future (Zimring).
Gun control is not an issue exclusive to the United States. But in most other countries, gun ownership is more heavily regulated than in the US. Such restrictions are not always effective in lowering crime. Russia has very strict gun laws, including banning all weapons except for long barreled shotguns and some BB guns from civilian possession. Yet Russia had 21,603 murders in 2009, compared to 13,636 murders in the US in the same year, even though, Russia’s population is less than half that of the US, with about 143 million people compared to 313 million in the US (Flintoff).
In the United States, gun ban legislation is very controversial, and outright bans have been proposed only in the context of “assault weapons.” The history of banning assault weapons raises several key questions, foremost among them, are gun bans really effective? Do they reduce gun violence? In a study on the Federal Assault Weapons Ban of 1994, Christopher S. Koper finds that “most survey evidence on the actual use of AWs (Assault Weapons) suggests that offenders rarely use AWs in crime.
In a 1991 national survey of adult state prisoners, for example, 8% of the inmates reported possessing a “military-type” firearm at some point in the past (Beck et al., 1993, p. 19). Yet only 2% of offenders who used a firearm during their conviction offense reported using an AW for that offense (calculated from pp. 18, 33), a figure consistent with the police statistics cited above. Similarly, while 10% of adult inmates and 20% of juvenile inmates in a Virginia survey reported having owned an AW, none of the adult inmates and only 1% of the juvenile inmates reported having carried them at crime scenes (reported in Zawitz, 1995, p. 6).”
Proponents of the ban argue that such weapons have no sporting application, and should be kept out of the hands of civilians. Mary M. Cheh, a D.C. councilmember, summed up her opinion during our interview of her in one phrase: “No one needs an assault rifle!”
But if an assault weapons ban, even if enacted, can affect only a very small percentage of crimes, what other solutions are there? And what is the best way to prevent criminal use of more commonly used guns, like your basic handgun. One legislative solution is to target how criminals get their guns. While most guns are originally obtained through legal acquisition, approximately five of every six firearms used in crime was illegally obtained by that criminal.
This means that something goes amok when the gun is in the secondary market, either through theft, “lying and buying” where the purchaser lies about whether they are prohibited from owning a firearm, or being sold on the black market (Ridgeway). The National Tracing Center compiles information about firearms so that in the event one is used in a crime, law enforcement has information that could help trace the firearm legal purchase history. This makes it easier for law enforcement to identify illegal gun trafficking.
But what is the best way to stop individual criminals from getting guns? While there will always be acts of violence that cannot be prevented, what are the common sense steps our society could take? Currently, the ATF requires FFL (Federal Firearms License) dealers to keep a record of: the name and address of the person from whom the FFL received the firearm; the name of the manufacturer and importer (if any) of the firearm; the model of the firearm; the serial number of the firearm; the type of firearm (pistol, revolver, rifle, shotgun, receiver, frame, etc); and the caliber or gauge of the firearm (Farago).
Also, all gun sales through FFLs, meaning all gun sales except private sales between residents of the same state, require the prospective buyer to undergo an FBI background check. Third, a person may not transfer (loan, sell, rent) a firearm to another person if they suspect the buyer is prohibited from possessing a firearm (Firearms). Fourth, straw purchasing, where someone who is prohibited from possessing a firearm uses a surrogate buyer to act for them, is a crime punishable by up to 10 years in prison (Straw).
These requirements, however, apply only where the seller is or uses an FFL, not to private sales between individuals in the same state. Requiring background checks for all sales might help reduce certain kinds of gun violence, like the instances of domestic violence in which a person under a restraining order was able to purchase a gun without undergoing a background check. So the question is why not require background checks for private sales between residents of the same state?
Opponents argue that this would require background checks for sales between family members, and that in some areas the nearest FFL is inaccessible. Some of these issues were addressed in a bipartisan bill introduced in 2013 by Senators Joe Manchin and Pat Toomey. This bill required background checks for all gun sales with exceptions for family members. The bill was defeated in the Senate (Blake).
Theft remains a large factor in how criminals obtain firearms. A fix for this might lie in safe storage requirements. In an article from one of the NRA’s publications,American Rifleman, B. Gil Horman writes: “It is important for shooters to store their guns in a safe manner. A gun in a drawer or on a shelf does not qualify as safe in any way, even if it’s unloaded and the ammunition is stored somewhere else.”(Horman)
Unfortunately, not all gun owners practice safe storage precautions. Incentives linking gun purchases with discounts for safe storage equipment would be a first step, or gun owners could be required by law to keep their guns stored when not in use, although this would likely be unpopular and decidedly necessary, seeing as most people advocate practicing safe storage in one form or another.
Another possibility is more and better education on using and storing firearms safely. Common sense suggests that educating people about gun safety will help avoid accidental deaths. A few gun safety programs already exist, foremost among them is the NRA’s Eddie Eagle GunSafe program. Developed with the help of teachers, law enforcement specialists, and psychologists, to name a few, the Eddie Eagle program has been taught to more than 26 million children K-3rd grade (Eddie).
Finally, some believe those who are concealed carriers can help stop crime, and there are situations where a concealed carry permit holder who was present as a crime unfolded did help to deter or prevent the crime. Unfortunately, not all people who have guns for self defense are sufficiently trained to act quickly and safely to stop a crime, and their firearms are sometimes used accidentally against innocents.
All 50 states “allow” concealed carry, although in 10 states local authorities have discretion whether to issue the permit (a de facto ban), while in 40 states any individual who meets the state requirements can obtain a concealed carry permit. Training requirements vary greatly from state to state, but one possibility is a national concealed carry law that would establish uniform requirements.
The Supreme Court has ruled definitively that the Second Amendment guarantees an individual right “to keep and bear arms.” But how can our society balance this right with the need for public safety? How can our nation respect the culture of hunting and shooting sports in some states, while other areas face high levels of urban gun violence? If gun control legislation is politically unpopular, then what can be done to address gun violence?
While some proposals remain either too controversial, or ineffective, there is more consensus around gun control legislation that focuses on criminals and how they get their guns. Better laws and enforcement tools around trafficking and straw purchasing, preventing theft, ensuring background checks for all purchases, and education could make a difference.
Guns are an important part of our history. Guns can be used for sport, for protection, and they can hold sentimental value like other prized objects. But they can also be used to hurt innocent people. Owning a gun is a right that carries a heavy responsibility. In his essay On Sheep, Wolves, and Sheepdogs, David Grossman writes about the role of the “sheepdog,” those who choose to protect the wider population from attack by “wolves.” He warns: “If you want to be a sheepdog … then you must make a conscious and moral decision every day to dedicate, equip, and prepare yourself for that toxic, corrosive moment when the wolf comes knocking at the door.”
Because of the inherent risk involved in owning and using guns, citizens who choose to own guns must be responsible in exercising their constitutional rights. Today, too many citizens on both sides of the debate demonize the other side. Our communities need to find space for open and honest dialogue. This is an issue that needs respect. All citizens need to listen to both sides with an open mind and address the best arguments across the spectrum to find effective solutions.
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