US gun politics
Gun Politics, the political aspects of gun control and firearms rights, has long been among the most controversial and intractable issues in American politics. At the heart of this debate is the relationship between the rights of the citizen and the Government's duty to provide for the common defense versus the Government's authority to regulate firearms and duty to maintain order.
Key to this issue is the Second Amendment, which is interpreted by supporters of gun rights as enshrining an individual right, and by advocates of gun control as referring to a right of the people to arm themselves only when bonded together for communal defense. A consensus of legal opinion does support the federal regulation of firearms.
The history of enactment of gun regulation legislation is characterized by repetitive cycles of popular outrage, action and reaction usually in response to sensational shootings. The first modern gun regulation, the 1911 Sullivan Act in New York State emerged in reaction to an attempt to murder New York City Mayor William Jay Gaynor. The shooting deaths of Senator Robert F. Kennedy and the Reverend Martin Luther King, Jr. led to public outrage and the political action with enactment of the federal Gun Control Act of 1968. Supporters of individual gun rights have resisted nearly all these regulation efforts, often spearheaded by the National Rifle Association. This outrage-action-reaction cyclical pattern reflects an essential core value conflict at the center of the gun politics issue.
The Gun CultureThe right to own a gun and defend oneself is considered by many to be central to the American identity. This stems in part from the nation's frontier history, where guns were integral to America's westward expansion, enabling settlers to guard themselves from Indians, animals and foreign armies, and citizens assumed much responsibility for self-protection. The 'Wild West' mentality is still evident in the US psyche today. A notable example was Mr Bush's famous rhetoric after the September 11 terrorist attacks that he wanted Osama bin Laden 'dead or alive'. The importance of guns also derives from the role of hunting in American culture, which remains popular as a sport in many parts of the country today.
About 59.1 million adults in the United States personally own a gun. Roughly 93 million adults, or 49% of the adult U.S. population living in households with guns. There is no national gun register in the USA, so it is impossible to know exactly how many guns are in circulation or who has them, but the FBI estimates there are more than 200 million guns in civilian hands.
Guns are prominent in contemporary U.S. popular culture as well, appearing frequently in movies, television, music, books, and magazines. Television regularly shows shootings and other violence in graphic detail, while sexual content and profanity are strictly regulated by the FCC.
In a seminal article, America as a Gun Culture, the noted historian Richard Hofstadter popularized the phrase gun culture to describe America's long affection for the gun, embracing and celebrating the association of guns and America's heritage. Regardless of one's political opinion about guns, the gun culture is an undeniable component of the gun debate.
The Hunting/Sporting ethos has come from a time when America was an agrarian, subsistence nation where hunting was a vital source of food for settlers, and also a key protection from animal predators. A connection between shooting skills and survival among early American boys was a nearly universal 'rite of passage' for entering manhood. Today, hunting survives as a central sentimental component of the gun culture regardless of the modern trend away from subsistence hunting and rural living.
The Militia/Frontier ethos derives from an early American dependence on wits and skill to protect themselves from hostile Indians and foreign armies. Survival depended upon everyone capable carrying a weapon (excluding Blacks, and in a large part, women). In the Eighteenth Century there was neither budget or manpower to maintain a full time army, therefore the armed citizen soldier carried the responsibility. Service in militia, including providing your own ammunition and weapons, was mandatory for all adult males. Yet, as early as the 1790s, the mandatory universal militia duty gave way to voluntary militia units and a reliance on a regular army, with a decline of the importance of militia trend continuing throughout the Nineteenth Century.
Closely related to the militia tradition was the frontier tradition, with the westward movement closely associated with weaponry. In the Nineteenth Century firearms were closely associated with the westward expansion. To a large extent this perception that guns won the West springs from a mythology, and ignores the role of homesteaders, ranchers, miners, tradespeople and businessmen. In fact the so-called taming of the West was attributable to ranchers and farmers, not gun-slinging cowboys. Regardless, today, there remains a powerful central elevation of the gun associated with the Hunting/Sporting and Militia/Frontier ethos among the American Gun Culture. Though it hasn't been a necessary part of daily survival for a long time, generations of Americans have continued to embrace and glorify it as a living inheritance—a permanent ingredient of the nation's style and culture.
The gun has long been a symbol of power and masculinity. In the United States it is also frequently tied to independence, freedom, respect, and patriotism. In popular literature, frontier adventure was most famously told by James Fenimore Cooper, who is credited with creating archetype of the 18th-century frontiersman through such novels as "The Last of the Mohicans" (1826) and "The Deerslayer" (1840).
In the late 1800s cowboy imagery entered the collective imagination. The cowboy archetype of individualist hero was established largely by Owen Wister in stories and novels, most notably "The Virginian" (1902), following close on the heels of Theodore Roosevelt's "The Winning of the West" (1889-1895), a history of the early frontier. Cowboys were also popularized in turn of the century cinema, notably through such early classics as "The Great Train Robbery" (1903) and "A California Hold Up" (1906)--the most commercially successful film of the pre-nickelodeon era.
Gangsters films began appearing as early as 1912, but didn't really take off until the advent of sound in film in the 1930s. The genre was boosted by the events of the prohibition era, such as bootlegging and the St. Valentine's Day Massacre of 1929, the existence of real-life gangsters (e.g., Al Capone) and the rise of contemporary organized crime and escalation of urban violence. These movies flaunted the archetypal exploits of "swaggering, cruel, wily, tough, and law-defying bootleggers and urban gangsters".
With the arrival of World War II, Hollywood produced many morale boosting movies, patriotic rallying cries that affirmed a sense of national purpose. The lone image of the cowboy was replaced in these combat films by stories that emphasized group effort and the value of individual sacrifices for a larger cause, often featuring a group of men from diverse ethnic backgrounds who are thrown together, tested on the battlefield, and molded into a dedicated fighting unit.
The gun's role in film since the war has been more varied. From the rebellious characters played by Marlon Brando and James Dean in the 1950s to escapist adventures like Raiders of the Lost Ark (1981), and from the glamorous outlaws of Bonnie and Clyde (1967) and The Godfather (1972), to the law and order avengers like Dirty Harry (1971) and Robocop (1987). In the 1970s films portrayed madmen produced by the Vietnam war in films like Taxi Driver (1976) and Apocalypse Now (1979), while other films told storied of veterans who were victims of the war and in need of rehabilitation (Coming Home and The Deer Hunter, both 1978). Many action films continue to celebrate the gun toting hero in both realistic and fantastical settings. At the same time, the negative role of the gun in modern urban violence has been explored in films like Boyz in the Hood (1991) and Menace to Society (1993).
While gun control is not strictly a partisan issue, there is more support for gun control in the Democratic Party than in the Republican Party. The Libertarian Party and the Constitution Party are the largest parties that completely support gun rights.
Politically, this case strengthened the opposition to slavery in the North, divided the Democratic Party on sectional lines, encouraged secessionist elements among Southern supporters of slavery to make even bolder demands, and strengthened the Republican Party, political forces with effect upon the Civil War.
Pro gun rights
The National Rifle Association (NRA), originally formed in New York State in 1871, reflecting concern over the Union Army poor marksmanship skills in the American Civil War. The group languished in its early years. Again, following concerns of poor marksmanship following the Spanish-American War of 1898, the group enjoyed a revival in 1900 with the assistance of gun enthusiast Theodore Roosevelt. Congress was prompted to establish the National Board for Promotion of Rifle Practice as part of the Militia Act of 1903, with the group benefiting from significant government subsidies.
In 1921, the NRA was still small, but by 1934, under the leadership of promotions manager C. B. Lister, the group had grown tenfold, with only limited political activities the main focus of the group was on marksmanship and sportsmanship. Another boost of membership occurred after World War II, with the returning soldiers, the enrollment tripled with a greater emphasis on hunting. A shift in the NRA's emphasis towards greater political activity opposing gun control occurred in the 1960s in response to the Congressional attention to gun regulation during this decade.
For many decades the NRA has operated firearms safety and marksmanship training courses and certifications through local shooting clubs with government subsidies of free ammunition and free access to military shooting ranges, through the Department of Defense Division of Civilian Marksmanship until 1996. In 1996, Congress created the non-profit Corporation for the Promotion of Rifle Practice & Firearms Safety, which took over the administration and promotion of the Civilian Marksmanship Program with the purpose is to encourage marksmanship skills among civilians with an emphasis on youth.
Other national gun rights groups generally take a much harder line than the NRA. These groups criticize the NRA's history of support for various gun control legislation such as the Gun Control Act of 1968, the ban on armor-piercing projectiles and the point-of-purchase background checks (NICS). The Second Amendment Sisters, Second Amendment Foundation, Jews for the Preservation of Firearms Ownership, The Pink Pistols and Gun Owners of America are among the groups in this category.
Pro Gun Regulation
Handgun Control Inc. (HCI), founded in 1974 by Republican businessman Pete Shields, formed a partnership with the National Coalition to Ban Handguns (NCBH), also founded in 1974. Soon parting ways, the NCBH was renamed the Coalition to Stop Gun Violence in 1990, and while smaller than HCI, has generally taken a tougher stand on gun regulation than HCI. Starting with few resources and not much impact, HCI saw an increase of interest and fund raising in the wake of the 1980 murder of John Lennon. By 1981 membership exceeded 100,000 though dwarfed in power by the size of the NRA. Measured in dollars contributed to congressional campaigns, HCI contributed $75,000 to the NRA's $1.5 million in 1980. Following the 1981 assassination attempt on President Reagan, and the resultant injury of James Brady, Sarah Brady joined the board of HCI in 1985. HCI was renamed in 2001 to Brady Campaign to Prevent Gun Violence.
According to The Center for Public Integrity, 145 groups are registered as making Gun related filings to lobby Congress. The largest being the National Rifle Association, spending about $1.5 Million dollars per year, predominately through two lobbying firms, the WPP Group and The Federalist Group. Ranked by total filings, Pro-Gun lobbying exceeded Gun-Control lobbying by the ratio of approximately 3:1.
Measured in dollars, in 2006, Gun Rights political spending on Lobbying totaled $3,000,000 versus Gun Control spending of $90,000. A ratio of 33:1.
The field of political research regarding firearms suffers from the same contention as the issue of the effect of firearm ownership on crime levels. Some influential individuals in the debate include (in alphabetical order):
James Brady, who was shot and disabled in an assassination attempt on President Reagan while working as his assistant. He and his wife Sarah Brady later became founders of the Brady Center to Prevent Gun Violence.
Arthur Kellermann, who studied firearm injury prevention after assisting many gun crime victims as an emergency room doctor. He has published studies examining the relationship between gun injury and the availability of firearms.
Gary Kleck, a leading academic expert in the connection between gun control laws and violence.
John Lott, author of More Guns, Less Crime and The Bias Against Guns
David Hemenway, author of Private Guns, Public Health
Donna Dees-Thomases Founder of the Million Mom March
Suzanna Hupp, survivor of the Luby's massacre and advocate of the right to carry a concealed weapon.
Political argumentsDisagreements range from the practical — does gun ownership cause or prevent crime? — to the constitutional — how should the Second Amendment be interpreted? — to the ethical — what should the balance be between an individual's right of self-defense through gun ownership and the People's interest in maintaining public safety?
Political arguments about gun rights fall into two basic categories, first, does the government have the right and authority to regulate guns, and second, if it does, is it effective public policy to regulate guns.
Right based arguments
A fundamental type of political argument about gun control is based on the premise that the government does or does not have the right and/or authority to regulate guns.
The meaning of the Second Amendment
The text of the Second Amendment to the United States Constitution reads as follows: "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."
The understanding of the Second Amendment to the United States Constitution is a touchstone of modern political debate about guns in American politics. The claim that the Second Amendment grants or protects a constitutionally based individual right to guns is a common theme of gun right proponents. For example, a study of the National Rifle Association publication American Hunter found thirty-four references to this claim in a single issue of the magazine.
The extensive emphasis on the meaning of the Second Amendment in modern political activity is reflected in the resultant public perception. A poll conducted by the National Rifle Association found that 89% of Americans believe they have a right to own a gun.
The claim that the Second Amendment does not grant or protects a constitutionally based individual right to guns is a common theme of gun right opponents. Robert Spitzer summarizes his opinion of United States Supreme Court precedence on this question:
"The Court in this case (U.S. v. Cruikshank, a pre-incorporation Supreme Court case) established two principles that it (and most other courts) have consistently upheld: that the Second Amendment does not simply afford any individual a right to bear arms free from governmental control; and that the Second Amendment is not "incorporated," meaning that it pertains only to federal power, not state power..."
According to Spitzer, the Second Amendment does not in any way restrict the States from passing legislation which regulates firearms. The vast majority of firearm laws in the United States are not federal, but local codes, and are not constrained by the Second Amendment
The Constitutions of the States
Each of the fifty states has its own constitution and laws regulating guns. Some of the States' constitutions provide for a state based right to firearms, and some do not. Each state differs politically and legally as to the balance of citizen's rights to guns versus the collective right to regulate guns.
Right of self defense
While a range of views may be found among proponents of gun rights, most believe that the Second Amendment protects the right to own guns for individual self defense, hunting, target shooting. Gun rights supporters argue that the phrase "the people" applies to all individuals rather than an organized collective, and point out that the phrase "the people" means the same individuals in the 1st, 2nd, 4th, 9th, and 10th Amendments. They also cite the fact that the Second Amendment resides in the Bill of Rights and argue that the Bill of Rights, by its very nature, defines individual rights of the citizenry. Many proponents of gun rights also read the Second Amendment to state that because of the need of a formal military, the people have a right to "keep and bear arms" as a protection from the government. The cultural basis for gun ownership traces to the American revolution, where colonists owned and used muskets equivalent to those of the British soldiers to gain independence.
Security against tyranny and invasion arguments
A position taken by some personal gun rights advocates is that an armed citizenry is the population's last line of defense against tyranny by their own government, as they believe was one of the main intents of the Second Amendment. This belief was also held by some of the authors of the Constitution, though a right of rebellion was not explicitly included in the Constitution, and instead the Constitution was designed to ensure a government deriving its power from the consent of the governed.
The Declaration of Independence itself says when discussing the abusive British rule: "...Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it..."
Thomas Jefferson wrote in defense of the Shays' Rebellion in a letter to William Stevens Smith (November 13, 1787), quoted in Padover's Jefferson On Democracy,
"What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."
Yet, the legal scholar Roscoe Pound has said:
"legal right of a citizen to wage war on the government is something that cannot be admitted. ... In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights."
Opponents of this right of revolution theory argue that the intent of the Second Amendment was the need to avoid a standing army by ensuring the viability of people's militias, and that the concept of rebellious private citizens or rogue militias as a check on governmental tyranny was clearly not part of the Second Amendment. As historian Don Higginbotham notes, the well-regulated militia protected by the Second Amendment was more likely to put down rebellions than participate in them.
Critics of the 'security against tyranny' argument argue also that replacing elected officials by voting is sufficient to keep the government in check, although there are numerous examples in history of elected officials assuming absolute power, with little regard to laws. Personal gun right advocates put forward the Battle of Athens in August 2, 1946 as an example of citizens in desperate circumstances using firearms where all other democratic options have failed. Pro-gun groups argue that the only way to enforce democracy is through having the means of resistance.
Then Sen. John F. Kennedy recognized the intent of the founding fathers "fears of governmental tyranny" and "security of the nation" in his statement Know Your Lawmakers, Guns, April 1960, p. 4 (1960),
"By calling attention to 'a well regulated militia,' the 'security' of the nation, and the right of each citizen 'to keep and bear arms,' our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important."
Pro-gun rights groups rarely believe in the plausibility of an "instant" rebellion's success through traditional warfare. Those who believe that arms allow for successful rebellions against tyranny hold that Guerrilla Warfare is the method in which liberty could be once again (or even for the first time) be achieved.
Few people debate the applicability of the Second Amendment in conjunction with the Ninth and Tenth Amendments, which read, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" and "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Clearly, the founding fathers recognized that some rights were so clear and obvious that they needed no enumeration.
Public policy arguments
A second class of political arguments are founded on the premise, that if the government has the right and authority to regulate guns, that to do so is or is not sound public policy.
Importance of a Militia
Opponents of a restrictive interpretation of the Second Amendment point out that United States Code states precisely that the militia is all male citizens and resident aliens at least 17 up to 45 with or without military service experience, and including additionally those under 64 having former military service experience, as well as including female citizens who are members of the National Guard. (Note: previously, only female citizens who were officers of the National Guard were included in this definition; this was changed to include all female citizens in 1993.) However, this position ignores the fact that this reference to federal entities, specifically the National Guard, does not appear in U.S. Federal Code until 1903 and thus cannot be said to be concurrent with the original intent of Second Amendment. Some people argue about even the number of commas in the amendment. Also, there is considerable disagreement about the organized militia and the unorganized militia and their relationship to the Second Amendment, the general question being, "Does the right pertain to only organized, well-regulated militias or all citizens?"
There is a wide range of views regarding the Second Amendment. Some gun rights advocates argue that the right to arms for self-preservation pre-dates the U.S. Constitution, is one of the unenumerated rights codified by the Ninth Amendment, and is protected by the Second Amendment; such gun rights advocates argue that the Second Amendment does not grant the right to arms, but simply protects the right to arms. Some gun control advocates argue that the Second Amendment does not cover individual gun ownership; others argue that the right to own firearms rests on other grounds which render it subject to the full force of the state's police powers, while others argue for outright repeal of the Amendment.A wide range of views exists regarding the Second Amendment among gun control supporters.
Those concerned about high levels of gun violence in the United States in comparison to other developed countries look to restrictions on gun ownership as a way to stem the violence. Those supportive of long-standing rights to keep and bear arms point to the Second Amendment of the Constitution, which some interpret as specifically preventing infringement of the "right of the people to keep and bear arms", independent of serving in a militia, as the means by which to stem the violence.
Within the gun politics debate, gun control advocates and gun rights advocates disagree on more practical questions as well. There is an ongoing debate over the role that guns play in crime. Gun-rights groups say that a well-armed citizenry prevents crime and that making civilian ownership of firearms illegal would increase the crime rate by making law-abiding citizens vulnerable to those who choose to disregard the law, while gun control organizations say that increased gun ownership leads to higher levels of crime, suicide, and other negative outcomes.
Relationships between crime, violence, and gun ownership
There is an open debate regarding the relationship between gun control, and violence and other crimes. The numbers of lives saved or lost by gun ownership is debated by criminologists. Research difficulties include the difficulty of accounting accurately for confrontations in which no shots are fired, and jurisdictional differences in the definition of "crime".
Some writers, such as John Lott, author of More Guns, Less Crime, say they have discovered a positive correlation between gun control legislation and crimes in which criminals victimize law-abiding citizens. Lott asserts that criminals ignore gun control laws and are effectively deterred only by armed intended victims just as higher penalties deter crime. His work involved comparison and analysis from data collected from all the counties in the United States. Lott's study has been criticized for not adequately controlling for other factors, including other state laws also enacted, such as Florida's laws requiring background checks and waiting period for handgun buyers.with similar findings by Jens Ludwig. Since concealed-carry permits are only given to adults, Philip J. Cook suggests that analysis should focus on the relationship with adult and not juvenile gun incident rates. He finds a small, positive effect of concealed-carry laws on adult homicide rates, but states the effect is not statistically significant. The National Academy of Science has found no evidence that shows right-to-carry laws have an impact, either way, on rates of violent crime. NAS suggests that new analytical approaches and datasets at the county or local level are needed to evaluate adequately the impact of right-to-carry laws.
Another researcher, Dr. Gary Kleck, a criminologist at Florida State University, estimated that approximately 2.5 million people used their gun in self-defense or to prevent crime each year, often by merely displaying a weapon. The incidents that Kleck studied generally did not involve the firing of the gun and he estimates that as many as 1.9 million of those instances involved a handgun.Kleck's research has been challenged by scholars such as David Hemenway who argue that these estimates of crimes prevented by gun ownership are too high.
The National Rifle Association regularly reprints locally-published stories of ordinary citizens whose lives were saved by their guns.
A study supported by the National Rifle Association found that homicide rates as a whole, especially homicides as a result of firearms use, are not always significantly lower in many other developed countries. This is apparent in the UK and Japan, which have very strict gun control, while Israel, Canada, and Switzerland at the same time have low homicide rates and high rates of gun distribution. Although Dr Kleck has stated, "...cross-national comparisons do not provide a sound basis for assessing the impact of gun ownership levels on crime rates."
In a New England Journal of Medicine article Kellermann, et. al. found that people who keep a gun at home increase their risk of homicide. Florida State University professor Gary Kleck disagrees with the journal authors' interpretation of the evidence and he argues that there is no evidence that the guns involved in the home homicides studied by Kellermann, et. al. were kept in the victim's home. Similarly, Dave Kopel, writing in the National Review criticized Kellermann's study. Kellermann responded to similar criticisms of the data behind his study in a letter to the New England Journal of Medicine. Finally, another argument cited by academics researching gun violence points to the positive correlation between guns in the home and an already violent neighborhood. These points assert that Professor Kleck's causal story is in fact backwards and that violent neighborhoods cause homeowners to purchase guns and it is the neighborhood that determines the probability of homicide, not the presence of a gun.
In his book Private Guns, Public Health, David Hemenway makes the argument in favor of gun control and he provides evidence for the more guns, more gun violence and suicide hypothesis. Rather than compare America to countries with radically different cultures and historical experiences, he focuses on Canada, New Zealand and Australia and concludes that the case for gun control is a strong one based on the relationship he finds between lower crime rates and gun control. Other information from countries such as South Africa, Russia, and several other countries which forbid almost all individual firearms and have low rates of gun ownership, have much higher murder rates than the US, usually committed with simple knives, explosives, or improvised blunt-force weapons.
Firearms are also the most common method of suicide, accounting for 53.7% of all suicides committed in the United States in 2003 Japan's suicide rate is much higher, despite the strict gun control there.
Non crime related
Non-defensive uses of guns, such as hunting, vermin control, and recreational target shooting, often receive little attention despite arguably being the most common uses of privately owned firearms.
Security against foreign invasion
There is some historical evidence that an armed populace is a strong deterrent against a foreign invasion. Personal gun rights advocates frequently cite tyrants who feared the idea of invading countries where the citizenry was heavily armed or when these tyrants needed to disarm their own populace to be effective. For example, Adolf Hitler said (as quoted in his Tischgespräche im Führerhauptquartier, April 11, 1942): "The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so."
On the other hand, countries such as India were able to effectively end foreign occupation without the need firearms, mainly through non violent protests.
Historical evidence cited by these supporters of gun rights includes the fact that during the Pacific War, Japan rejected the idea of invading the West Coast of the United States due to the prevalence of armed civilians. As noted after the war by one Japanese Admiral, "We knew that your country actually had state championships for private citizens shooting military rifles. We were not fools to set foot in such quicksand."
The Afghanistani Mujahideen countered well-equipped Soviet Armed Forces with ancient bolt action rifles. As noted by Major Keith J. Stalder, USMC, in 1985, "... the Lee Enfield-armed Afghans can often hit at 800 meters or longer range while the Kalashnikov-armed motorized riflemen are ineffective beyond 300 meters..". As Kenneth W. Royce has phrased it, 60,000 dead Soviets cannot all be wrong. Ultimately, the Soviets left in defeat, losing against mostly WW I and WW II bolt action rifles, while they themselves were armed with the latest weapons. Of course, the Mujahideen did have significant support from the West with Stinger missiles, but their bolt-action weapons were still essentially indigenous.
Supreme Court decisions
Since the late Nineteenth Century, with three key cases from the pre-incorporation era, the Supreme Court consistently ruled that the Second Amendment (and the Bill of Rights) restricts only the federal Congress, and not the States, in the regulation of guns.Some legal scholars hold that since the Supreme Court has declined ample opportunity to review these decisions in the post-incorporation era, these decisions stand as "good law". Challenges to gun regulations, including efforts to incorporate the Second Amendment have been uniformly turned aside, leaving the inescapable conclusion that the Supreme Court considers this matter settled.
"Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles. To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; "Saturday night specials" and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles." — Ex-Chief Justice Warren Burger.
Other scholars hold that the Court's incorporation of other rights suggests that they may incorporate the Second, should a suitable case come before them.
There has been only one modern Supreme Court case that dealt directly with the Second Amendment, United States v. Miller. In that case the Supreme Court did not address the incorporation issue, but the case instead hinged on whether a sawed-off shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia." The appellants did not appear in this case and no evidence on this issue had been presented at trial, so the court could not assume on its own initiative that such a weapon "is any part of the ordinary military equipment or that its use could contribute to the common defense." Therefore, the Supreme Court held that it "cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
A recent circuit court decision, Parker v. District of Columbia, overturned a federal gun control law on constitutional grounds ruling contrary to Supreme Court precedent, and most other federal courts of appeal. According to the majority:
"In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United Statesby the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights."
Gun control laws
Gun control laws and regulations exists at all levels of government, with the vast majority being local codes which vary between jurisdictions. The NRA reports 20,000 gun laws nationwide. Yet, a study published in the American Journal of Preventive Medicine identifies only 300 relevant federal and state laws regarding the manufacture, design, sale, purchase, or possession of guns.
At the federal level, fully automatic weapons and short barrel shotguns have been taxed and mandated to be registered since 1934 with the National Firearms Act. The Gun Control Act of 1968 adds prohibition of mail-order sales, prohibits transfers to minors, limits access to assault weapons manufactured after May 19, 1986. The 1968 Act requires that guns carry serial numbers and implemented a tracking system to determine the purchaser of a gun whose make, model, and serial number are known. It also prohibited gun ownership by convicted felons and certain other individuals. The Act was updated in the 1990s, mainly to add a mechanism for the criminal history of gun purchasers to be checked at the point of sale, and in 1996 with the Domestic Violence Offender Gun Ban to prohibit ownership and use of guns by individuals convicted of misdemeanor domestic violence.
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