Second Amendment Basis for Gun Rights: A Discourse

Despite the heated escalation and proliferation of controversial debate over gun control policy, as it pertains to a response to the recent rash of irrational gun-related deaths there is a cogent historical background from which to draw a conclusion. As of late people have been ranting that individuals have the right to bear arms as part of guaranteed freedoms, under the United States Constitutional Amendment II which reads: “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” (“U.S. National Archives and Records Administration”). This – the Second Amendment then compels the historically rooted foundation upon which arguments for or against persist. 

This discussion considers the recent history of President Obama's promulgation of national gun policy, and possible directions that impact policy decision in terms of competing interests. On one hand guns rights advocate the right to bear as an individual freedom, while stiff opponents say that legal gun use causes violent senseless tragedy to spread. Common knowledge sets the recent historical backdrop stemming from the events from Columbine, Aurora in Colorado, and the Newtown shootings. In any case a closer look at the original meaning and intent of the Second Amendment serves as an appropriate, and good way to start. The right to bear arms is set in the context of serving a Militia with the purpose of ensuring the security of a free State, with the people's right to keep their firearms – this, therefore, sets the groundwork for a critical analysis. 

Three key points of the Second Amendment involve the Militia aspect, the securing a free State viewpoint, and people keeping their firearms. According to legal experts at Cornell University there has been no one clear jurisdictional resolution for interpretation. Furthermore, these experts insist that the Second Amendment is a “bar only to federal action, not extending to state” restraints (“Bearing Arms Second Amendment”). The same source agrees that the Supreme Court deals with the issue from the Militia aspect. One news report on a podcast video blog shows President Obama naming 23 executive orders relative to imposing stricter gun control legislation. 

Among them are bans on capacities more than 10-round magazines, tougher penalties on sellers to those not allowed to have guns, non-legalization of military-type assault weapons, and more. Perhaps the most disturbing executive order announced in January 2013, is the directive that calls for a memo telling the Centers For Disease Control to “research the causes” of gun violence (“President Obama's gun control announcement”). Inevitably the “causes” might include some sort of psychological or racial profiles, which can be a sticky situation. Some analysts use a comparative approach to a critical breakdown of the Second Amendment controversy.

One peer-reviewed journal article author Miller compares the Second Amendment to the Seventh. Miller expresses that we can learn about the Second Amendment from the Seventh by a reliance upon the historical “constitutionality of any given practice or regulation” (p. 852). In other words, depending upon rules of the text of common law. In the journal Texas Law Review, author Magarian takes a similar approach and compares the Second Amendment to an analysis of the First Amendment in “Speaking Truth to Firepower: How the First Amendment Destabilizes the Second.” In it Magarian proclaims the connection is a weak link as a direct analogy. The bottom line though is that Professor Magarian recognized that some Amendments are to individuals while others have a “collectivist” theory or “model” which serves for interpretation. This writer agrees wholeheartedly. If you really think about it, the Second Amendment does read “Militia” and Magarian proposes that it may be difficult to distinguish whether to “bear arms” equals a specific connotation for “organized military activity” (p. 56). He concedes that it may hold a double meaning of the right to be potentially prepared for such use or to merely have the right to shoot – such as in the common law philosophy, for the protection of life and property of loved ones. Who can tell? But at the heart of the matter lies whether or not heavy gun control legislation will detour maniacal gun-related murder, such as witnessed at Columbine or Aurora. The excuse or reason why many believe gun control will stop these types of heinous violence is that guns get in the hands of criminals. So, therefore, stricter controls will stop the senseless killing sprees. One Constitutional law case examines this idea with an example.

In the case decision of United States v. Skoien, the Seventh Circuit upheld the constitutionality of a statute prohibiting possession of firearms by a domestic violence convict. The case resulted when Steven Skoien challenged the constitutionality of the law, since he had been charged when his “shotgun” discovered in his truck got him into trouble for violation – although he complained that the gun was for “deer hunting” (“Constitutional Law – Second Amendment – En Banc Seventh Circuit...”. Nevertheless, the Militia aspect is hard to ignore. Furthermore, in terms of the Militia does the Second Amendment hint at overthrowing traitors to the nation? Does it connote thwarting enemies physically both foreign and domestic? Furthermore, who can reasonably identify any of the aforementioned foes? Both global and domestic scenes have become rife with complexities. See the problem? 

In the Second Amendment, it is stated that the people have a right to “keep” arms. If new governmental restrictions propose to take them away, is this a breach of constitutionality? But perhaps in this new post-911 era additional draconian measures are rational, even if it means infringing upon the people's right to bear arms in America. One thing is certain. All are not going to agree. One convincing argument cites that guns used in serial killings are not registered to legal, and responsible citizens in the first place. Good point. Even President Obama in his address announcing the plethora of executive order bans on gun control admitted that, for instance, the mentally challenged sector of society are most often the victims of violent gun crime – not the perpetrators of it. 

In conclusion, when all is said and done any imminent federal gun control legislation does not circumvent laws within the different states. Given the recent historical background of senseless gun violence massacres such as the Orlando Pulse nightclub, the jury is still out on what that final and definitive public policy might be. The impact will surely drive the policy decision into new sessions of debate. Obviously, this will open the doors for continued competing interests to vie for political power in winning over their point of view.

References

Hot News Port (2013, January 16). WATCH: President Obama's gun control announcement Jan. 16, 2013. [Web vlog YouTube comment]. Retrieved from https://www.youtube.com/watch?v=hyyWMoHOQPY 

Constitutional Law – Second Amendment – En Banc Seventh Circuit Holds Prohibition On FirearmPossession By Domestic Violence Misdemeanants To Be Constitutional – United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). (2011). Harvard Law Review, 124(4), 1074-1081. 

Cornell University Law School – Legal Information Institute. (2013). Amendment 2 table of contents- bearing arms second amendment [Data file] Retrieved from http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd2

Magarian, G. P. (2012). Speaking truth to firepower: How the first amendment destabilizes the second.Texas Law Review, 91(1), 49-99.

Miller, D. H. (2013). Text, history, and tradition: What the Seventh Amendment can teach us about the Second. Yale Law Journal, 122(4), 852-938. 

The U.S. National Archives and Records Administration. (2013). Bill of Rights transcript text [Data file] Retrieved from http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html