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Running head: GUN CONTROL IN THE USA Gun Control in the USA April 13, 2009 Gun Control in the USA Introduction The issue of gun control in the United States has become a subject of heated debates. The furor over gun control issues has raged across the U. S. society for years.
Yet, despite the numerous studies and discussions concerning this problem, no comprehensive policy analysis on gun control had been conducted, irrespective the fact that the gun control debate became merely a political debate over the appropriate application and consequences of U. S. government policy. To a certain extent, gun control issue is a question concerning the relationship between the U. S. citizens, and government power to regulate and maintain the public order.
These questions mostly involve public policy issues, especially those related to the question: whether gun use and gun possession should be significantly regulated by the U. S. government? In attempts to answer this question public policy makers are less concerned with the extent of real efficiency of every U. S. regulatory alternative, but mostly with the very regulation principle concerning the gun control problem.
Yet, every new debate over new attempts to enact a better and stricter gun control evolves more questions of the U. S. government regulation. This research paper examines gun control issues in the United States and how the 2 nd Amendment to the U.
S. Constitution has been interpreted by the Supreme Court of the United States in relation to gun control by thorough examination of the four landmark cases: United States v. Cruikshank (1875), Presser v. Illinois (1886), United States v. Miller (1939) and District of Columbia v. Heller (2008).
Gun Control in the United States The controversy over gun control in the United States is closely connected with two most important questions concerning the U. S. government authority (Boorstin p. 26). First of all, it relates to question whether the United States government has right to impose such regulations, and, second, in case the U.
S. government does have this right, should it exercise gun control? It should be mentioned, however, that there are various gun control relations in the U. S. , both at national and local levels. No wonder that the opponents of gun control claim there are over 20, 000 state, federal and local laws regulating firearms usage, and, therefore there is no need for additional regulations (Edel 145).
The opponents of gun control also claim that if assuming the government has right to regulate guns, it may impinge on the innate rights of the U. S. citizens as a free nation and may infringe their constitutional rights. Therefore, it is important to properly understand the role and purpose of the U. S. government regulation and to examine gun control issue in relation to constitutional rights and, namely, how the 2 nd Amendment to the U.
S. Constitution has been interpreted by the Supreme Court of the United States in relation to gun control. It is obvious that the most important role and aim of the government is to establish and maintain order. This public order is maintained through public policy (Hofstadter p. 15). The tools or techniques of public policy may take many forms, ranging from strict regulation of individual conflict to dispensing of benefits; however, the most important question of maintenance of public order is usually associated with the direct regulation the power the U.
S. government exercises in purposes of protection of the health, safety, and morals of the U. S. citizens. Moreover, the U. S.
government also acts as a guarantor of the public good, achieved by relations of individual conduct and private functions (for example, regulating what is considered immoral or harmful to others) (Utter p. 85). Gun Control and The Second Amendment Gun control debate is closely associated with the questions of the U. S. law and Constitution: The greater deadliness of small firearms easily carried upon the person, the alarming frequency of homicides and felonious assaults with such arms, the evolution of a distinct class of criminals known as "gunmen.".. are now pressing home the question of the reason, scope, and limitation on the constitutional guaranty of a right to keep and bear arms. (Lucilius Emery) (Spitzer p. 29) In public debates concerning gun control, the Second Amendment (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. ) (Blair p. 82) is often mentioned and referred to, especially with the opponents of the gun control. The understanding of the Second Amendment is very important, as it is a touchstone of the gun control debate.
First, it should be mentioned that gun possession was a part of frontier and colonial life, and settlers often relied on volunteer militias that were not only allowed to possess firearms, but were obliged to keep firearms by the law. The controversy over the 2 nd Amendment in the U. S. Constitution is, therefore, whether the U. S. citizens have right to possess guns as individuals (rather than only being a part of National Guard units or militia).
The two completely different viewpoints concerning the Second Amendment, therefore, imply two ideas: whether the 2 nd Amendment can be interpreted as a law that grants a right to the individuals to possess and keep firearms, or whether the 2 nd Amendment relates to a civilian militias right to bear arms only. There are four cases that are generally cited as the most relevant cases to the Second Amendment, namely, United States v. Cruikshank (1875), Presser v. Illinois (1886), United States v.
Miller (1939) and District of Columbia v. Heller (2008). United States v. Cruikshank (1875) In this case, U. S.
v. Cruikshank, 92 U. S. 542 (1876), William J. Cruikshank and two other defendants were accused of 12 violations of the U. S.
federal law concerning to their participation in lynching two African Americans, violations of the victims right and privilege peaceably to assemble together. (Bellesiles p. 15) The defendants were also accused of deprivation African Americans of gun possession, in violation of the Force Act of 1870 (Huntington p. 7). The case took place in New Orleans, Louisiana. According to Chief Justice Waite, in this case The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose. " (Volokh) This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
The Second Amendment declares that it shall not be infringed; but this... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National Government. (Spitzer p. 30) The importance of the case United States v. Cruikshank (1875) cannot be underestimated, as the Supreme Court established two core principles: the 2 nd Amendment cannot be considered as the law that allows any U. S. citizen to possess firearms free from the U.
S. government control, and that the 2 nd Amendment is not incorporated. (Slotkin p. 140) In other words, the 2 nd Amendment relates not to state power but to federal power. Presser v. Illinois (1886) This case, Presser v. Illinois, 116 U. S. 252 (1886), was ruled ten years later.
This case involved the question of constitutionality of a particular gun control rather than the Second Amendment and protection of individual rights. The Court ruled that barred paramilitary organizations from parading or drilling in towns of U. S. cities without obtaining a license from the governor was constitutional (Kopel). Justice Woods in the speech claimed that: It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserved militia of the United States as well as of the States; and, in view of this prerogative... the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.
But, as already stated, we think it clear that the sections under consideration do not have this effect. (Spitzer p. 31) In other words, this case reasserted the understanding of the fact that the right to bear firearms can only be taken into consideration in connection with the conduct and formation of the militia, as it is regulated and formed by the government. United States v. Miller (1939) The third case, United States v. Miller, 307 U. S. 174 (1939), was based on a challenge to the National Firearms Act of 1934 (this act regulated the interstate transportation of different kinds of guns and firearms) (Jacobs p. 146). Two bank robbers, Frank Layton and Jack Miller were accused of transporting an unregistered sawed-off shotgun across state borders.
Frank Layton and Jack Miller claimed that the act was unconstitutional as it violated the Second Amendment. They also claimed that the commerce power was improperly used. In this case, the Court rules that firearm registration was constitutional and the federal tax power could be properly used to regulate firearms. The most important in United States v. Miller, 307 U. S. 174 (1939) was the Court claim that the 2 nd Amendment should be understood and interpreted by its obvious purpose of assuring the effective militia operations as it was presented in Article I, sec. 8.
As Justice McReynolds said in his speech, In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. (Spitzer p. 32) In such a way, in this case the Court was unequivocal in saying that the United States citizens had constitutional right to bear firearms only if the fact of bearing arms was in connection with the service in a government regulated and organized militia. United States v. Miller, 307 U. S. 174 (1939) also affirmed the constitutionality of the right of Congress (and the states) to regulate guns.
District of Columbia v. Heller (2008) Finally, the fourth case, District of Columbia v. Heller (2008), is a landmark case in which it is asserted that the Second Amendment protects the individuals right to have firearms in possession for private use. In fact, it was the first case in the United States directly answering the question whether the citizens right to possess and bear firearms is a right of the U. S. citizen as an individual, or it is the collective right of the individuals who serve in militia.
This case emerged from The Firearms Control Regulation Act of 1975, according to which the possession of the handguns within the local DC was banned. Although the first six citizens challenged this Act in 2003, their case was dismissed by the Court, however, in 2007 the U. S. Supreme Court has agreed to hear it. After a long hearing, the Justice Antonin Scalia finally held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes and that the possession of guns may be banned if only they are "unusual and dangerous. (Kopel) In such a way, this case became the most important case related to the Second Amendment and gun control issues in the United States history, as, although it was formulated so to strike down gun control laws, claiming that nothing in [the Courts] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws prohibiting the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms, (Kopel) but considered the provisions of the Firearms Control Regulations Act of 1975 to be unconstitutional, claiming that handguns should be considered the arms that should not be banned by the DC.
Works Cited Bellesiles, M. "The Origins of Gun Culture in the United States, 1760 - 1865. " Journal of American History 83 (1999): 426. Blair, C. Pollard's History of Firearms. New York: Macmillan, 1983.
Boorstin, D. The Americans: The Colonial Experience. New York: Vintage, 1964. Edel, W. Gun Control: Threat to Liberty or Defense against Anarchy? Westport, CT: Praeger Publishers, 1995.
Hofstadter, R. "America as a Gun Culture. " American Heritage 21 (1970): 85. Huntington, S. Political Order in Changing Societies. New Haven: Yale University Press, 1968.
Jacobs, J. Can Gun Control Work? New York: Oxford University Press, 2002. Kopel, D. Presser v. Illinois. 13 April 2009 < web >.
Slotkin, R. Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America. New York: Atheneum, 1992. Spitzer, Robert J. The Politics of Gun Control. New York: Chatham House Publishers, 1998.
Utter, G. Encyclopedia of Gun Control and Gun Rights. Phoenix, AZ: Oryx Press, 2000. Volokh, E. Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions. 13 April 2009 < web >.
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