In his new book, Six Amendments: How and Why We Should Change the Constitution, former U.S. Supreme Court Justice John Paul Stevens proves that retiring from the bench does not mean retiring from controversy. Apparently determined to venture into the foray of contentious political and legal debate one more time, the 93 year-old Justice set his sights on the perennial flashpoint that is the Second Amendment. In doing so, he touched upon an important schism in constitutional jurisprudence, one that informs today’s assault weapons bans and gun registries (or lack thereof). The issue is: does the Second Amendment guarantee that an individual can carry a gun solely for private purposes like self-defense, or is it a right that primarily extends to collective needs, such as maintaining a militia?
Anyone familiar with his increasingly liberal viewpoints would probably not be surprised to learn that Stevens strongly advocates for the latter. In fact, to make his support for a collectivist reading perfectly clear, he goes as far as to propose a rewording of the Second Amendment. The Constitution currently states, “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.” Stevens would iron out all the wrangling over this clause by inserting the deceptively small five-word phrase, “when serving in the militia.” This caveat would dramatically reverse the current trend, which has been to bolster the individual’s right to carry a wide range of weapons for self-defense.
Rather than a drastic departure from the historical right to bear arms, Stevens’ proposed revision would actually be a return to the viewpoint of past Judges. Until the Roberts Court reexamined the issue of collective vs. individual gun rights in 2008, the most recent ruling on the matter was the 1939 case, United States v. Miller. Over seventy years ago, the Court unanimously ruled that if a particular type of weapon – in this case, a sawed-off shotgun – does not clearly have “some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” This ruling was widely accepted as an affirmation of the collectivist, militia-based interpretation, even by typically staunch liberty advocates like the ACLU. Over the next several decades, gun laws significantly constrained firearm purchases made by non-militia individuals for non-militia purposes.
Miller reigned for the rest of the century, but the consensus around its meaning was challenged in the landmark 2008 case, District of Columbia v. Heller. Justice Antonin Scalia, author of the majority opinion, brandedMiller a “virtually unreasoned case” in oral arguments. Yet his criticism also extended to the general interpretation of the case by the legal community; in Scalia’s view, Miller really came down to “the type of weapon [that] was not eligible for Second Amendment protection[,]” [emphasis original] meaning that “the opinion provided no explanation of the content of the right.” In layman’s terms this implies that a weapon should be allowed if it has reasonable paramilitary potential, instead of needing to actually be part of organized, armed activity. As Justice Scalia pointed out in the written opinion, “[h]ad the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.” Armed with a more narrow view of 1939’s ruling, along with textual analysis of the Second Amendment and a defense of the constitutional right to self-defense, the Roberts Court declared that the right to bear arms is substantially independent from a “well-regulated militia.”
Justice Stevens’ strongly worded dissent from the decision, seconded by three of his colleagues, is the basis for his newly proposed amendment. He contended that the individual’s right to have a weapon was originally codified for the sake of maintaining provincial and local militias. Nowhere does constitutional history justify the wholesale protection of personal firearm usage. Therefore, regarding the right to self-defense in the District of Columbia v. Heller, Stevens’ wrote that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
Two years later, the Court reaffirmed its big 2008 ruling in McDonald v. Chicago. Yet the matter is far from settled; like Heller, McDonald v. Chicago was decided along an ideologically polarized 5-4 split. Without more consensus on the nation’s highest court, the constitutionally endowed right to self-defense continues to have a shaky mandate. By proposing to the drastic and politically unlikely step of amending the Constitution, Justice Stevens has shown that the issue of aggregate vs. individual gun rights continues to divide the legal community. Numerous law professors and scholars, while in general agreement about the Second Amendment’s individualistic aspects, do not have a clear standard for whether these prerogatives are based on private or public interest. This tension is extremely important: it means that the fate of gun laws will not be determined by NRA membership or another Newtown-like massacre, but by whether we can agree on the conceptual origin of gun rights. If we can fully answer why an individual can buy a gun, then we can define when he may do so and what he can purchase.
It’s easy to believe that the youth of our country can’t think beyond their Facebook noses, but Gun Owners of California has had the extraordinary pleasure of meeting – and working with – some amazing young people who give us hope for the future of the United States. This week, our featured blog post comes courtesy of Hailey Jordan. She’s a high school junior who recently presented the following paper “Against Gun Control”, an argumentative essay where the students were told to take a stand and support their reasoning for a current issue, and she does a bang-up job! Hailey demonstrates a far greater understanding of the design and intent of our Constitution than most Americans. And the best thing is, she doesn’t just write about the 2nd Amendment – there’s action behind her words: thank you Hailey for all your work in making our Vacaville Dinner a great success!
It is our pleasure to reprint her essay.
AGAINST GUN CONTROL
by Hailey Jordan
What is the purpose of government? The U.S. Constitution answers this perfectly; “We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity…” (U.S. Constitution, Preamble). This introduction to the U.S. Constitution promises that the government will protect U.S. citizens and their natural born rights. While the idea of protection would normally feel comforting, U.S. citizens cannot rest assured that the government will fulfill the standards enumerated in the U.S. Constitution as decisions the government makes often compromise these principles. Examples of this compromise would include the numerous times the government has or has tried to pass gun control laws. The government should not induce more gun control. In doing so the government would be infringing upon the second amendment, failing to properly address violence, and infracting upon the freedom to own guns for hunting and sport.
By imposing gun control the government is breaking their promise to protect U.S. citizens’ rights. The Bill of Rights explicitly states U.S. citizens’ unalienable rights, one of which is the right to bear arms. The second amendment states “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 Bill of Rights). This clearly states that Americans are born with the right to own guns, and the government cannot impede upon this right. However, when gun control is imposed making it harder or impossible for a U.S. citizen to own a gun, the right is infringed upon. The DOJ has a roster of handguns certified for sale in California and states that “No handgun may be sold by a firearms dealer to the public unless it is of the make and model that has passed required safety and functionality tests and is listed on the DOJ’s official roster of handguns certified for sale in California” (Pen. Code, #32000). This law prevents citizens from being able to own certain guns, which is infringing upon the second amendment. The government justifies this by saying that gun control will prove to be beneficial, reducing crime and violence. In reality, gun control fails to solve either of these issues.
An increase in gun control would not solve the issue of violence. Desert News announced that the Brady Campaign issued a 100-point scorecard ranking all the states in The U.S. on gun control enacted by 2011 including; background checks, permit-to-purchase laws, etc. Number nine on the list of states with the strictest gun laws is Illinois (Hartvigsen “10 States Strictest Gun Laws”). However, Neighborhood Scout listed the thirty cities with the highest homicide rates of 2017 and named East ST. Louis, IL as number one (“Top 30 Cities Highest Murder Rates”). Illinois had strict gun control laws for six years yet the state still had plenty of violence and crime. This directly shows that gun control does not resolve any violence or crime issues. A criminal, by definition, is a person who has committed a crime. Since these criminals have already proven themselves to be those who break the law, more laws would likely not prevent crime. Additionally, guns are not the actual problem that needs to be addressed. In 2012 a patient (Devin Kelley) escaped from a mental hospital in New Mexico. Later, in 2017, he shot and killed 26 people in the First Baptist Church of Sutherland Springs in Texas (Emily Shapiro “Texas Shooting Suspect”). In this case, and numerous others, the human is not mentally stable, making them the threat, not the gun. There is a bigger issue at hand- mental health issues- that the government is failing to solve with gun control. This shooting in Texas occurred after an unstable patient escaped from a mental hospital; perhaps what the government needs to impose is stricter mental health regulations such as higher security at mental hospitals or better mental health awareness.
Gun control infracts upon the freedom to own guns for hunting and sport. Petersen’s Hunting summarizes how most hunters believe that the “common sense” gun laws the government wants to impose will not affect them. The hunters think that the gun laws only apply to the criminals and mentally unstable and therefore they can continue to hunt, unaffected (Mike Schoby “Why Gun Bans Affect Hunters”). However, the government continues to keep adding gun laws, making it harder and harder for even a regular person to purchase a gun. When the second amendment was written there was no gun control at all, but over time the U.S. has accumulated a vast number of them. What starts off as just “common sense” gun laws can eventually turn into a gun ban, which most certainly will affect hunters. In the state of California “It is illegal for any unauthorized person to possess or bring a firearm upon the grounds of, or into, any public school” (Pen. Code, #626.9). This gun control law directly impacts high school students as it makes it very difficult, and in some cases impossible, for high schools to have a trap team. Since this law will not allow schools to hold practices on campus, schools are either forced to find somewhere else to practice or not offer a trap team. Many schools do not even have access to another location to hold trap team practices, and therefore students do not have a trap team to join. This violates American’s freedoms as schools should be able to easily offer a trap team for students to join.
Many people seem to think that banning guns will result in significantly reduced violence. However, the ban of guns will fail to solve violence problems as criminals already, and will continue to, obtain guns illegally. The California Firearms Laws Summary states that any person convicted of a felony has a lifetime prohibition from owning a firearm (Penal Code Section 29905). Criminals clearly disregard laws, so even though it is illegal for a felon to own a firearm, felons still obtain and use guns illegally. Just because there is more gun laws does not mean criminals will follow them, therefore more gun control will not solve violence issues.
In summary, gun control infringes upon the second amendment, fails to solve violence issues, and violates U.S. citizens’ freedom to own guns for hunting and sport. All American citizens are born with unalienable rights that cannot be taken away. It is the government’s job to ensure that American’s rights don’t get taken away, yet they are the ones taking away our natural born freedoms. It is time America bands together to stand up for our rights and explore new solutions such as better mental hospital security or mental health awareness, instead of stricter gun laws.
Hartvigsen, Matthew. “10 States with the Strictest Gun Laws | Deseret News.” DeseretNews.com, 7 Apr. 2013, www.deseretnews.com/top/1428/0/10-states-with-the-strictest-gun-laws.html.
Schoby, Mike. “Why Gun Bans Affect Hunters.” Petersen’s Hunting, 1 May 2013, www.petersenshunting.com/conservation-politics/why-gun-bans-affect-hunters/.
Shapiro, Emily. “Texas Shooting Suspect Escaped from Mental Health Hospital in 2012, Attempted ‘to Carry out Death Threats’: Police Report.” ABC News, ABC News Network, 7 Nov. 2017, abcnews.go.com/US/texas-shooting-suspect-escaped-behavioral-center-2012-attempted/story?id=50985821.
“State of California – Department of Justice – Office of the Attorney General.” State of California – Department of Justice – Office of the Attorney General, oag.ca.gov/.
“Top 30 Highest Murder Rate Cities in the U.S. 2017.” NeighborhoodScout, 27 Oct. 2017, www.neighborhoodscout.com/blog/highest-murder-rate-cities.
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