The Second Amendment and Gun Control Laws as a Subject of Debate

Table of Contents

1. Introduction

2. The Founders’ Vision of the Second Amendment

3. How the NRA rewrote the Second Amendment
3.1. Supreme Court Cases

4. Gun Control Laws

5. Conclusion

6. Works Cited

1. Introduction

“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.” Second Amendment to the United States Constitution

The Second Amendment to the United States Constitution is subject of much debate. Some might claim that it is a relic from older times, others regard it as their unalienable right to own guns. Only in 2008, the Supreme Court case of District of Columbia v. Heller granted an individual right to own guns for self-defense under the Second Amendment of the Constitution. Many gun rights advocates, including the National Rifle Association, praised the court’s decision, but many gun control activists opposed it. As of today, gun rights advocates and gun control organizations have little basis for discussion. For that reason, this study is concerned with the historical development of the Second Amendment and how it is interpreted today. In doing so, John Vile’s A Companion to the United States Constitution and its Amendments and Adam Winkler’s Gun Fight have been consulted to provide background information on the history of the Second Amendment. Due to the fact that this term paper also deals with current statistics on gun control laws, it also relied on online research and online publications.

Firstly, there will be a chapter that deals with the original intent of the founding fathers, who framed the Second Amendment to the United States Constitution. It will provide an historical overview of the creation of the Second Amendment and what led to its inclusion into the Bill of Rights. It further tries to explain the founder’s interpretation of the Second Amendment with regards to the militia. Chapter three will focus on the question, how the National Rifle Association was able to rewrite the Second Amendment in order to gain more profit and get support for gun rights. The chapter will present the approach taken by the NRA that resulted in a new interpretation of the Second Amendment and established the perception of an individual right to possess firearms within American society. It will take into account the Supreme Court cases of United States v. Miller of 1939 and District of Columbia v. Heller of 2008, that ultimately guaranteed an individual’s right to own firearms without any connection to a militia. Another chapter will focus on gun control laws and provide a comparison between the United States and other developed countries. Furthermore, this chapter will give an insight into the perception of the Second Amendment within American society and discusses current gun control policies. Finally, the last paragraph of this term paper will be a conclusion, which sums up the results achieved and gives an outlook for future research on the Second Amendment and gun control laws.

2. The Founders’ Vision of the Second Amendment

The authors of the Declaration of Independence and the leaders of American independence from Great Britain are commonly referred to as the founding fathers of the United States (Vile 2). Among them many lawyers, politicians and philosophers such as John Adams, Benjamin Franklin, Alexander Hamilton, Thomas Jefferson, John Jay, George Washington and James Madison who later framed the United States Constitution and the Bill of Rights (Vile 3). To determine the original intent of the Second Amendment of these founding fathers, this paragraph will give a short historical background and examine the tense relationship between the British crown and the colonists that ultimately resulted in the American Revolutionary War.

After the French and Indian War ended in 1763, the British Empire secured its control of North America and the French had to cede Canada to the British crown (Vile 141). However, Britain was enfeebled by its war efforts and left with enormous debts (Vile 141). Since the outcome of the war also benefited the American colonists, the Parliament of Great Britain imposed several acts on the thirteen colonies, in order to raise its revenue (Vile 143). Those acts included the Sugar Act of 1764, the Stamp Act of 1765 and the Tea Act of 1773, just to mention a few (Vile 143). With the help of these new laws, the British Empire was able to raise revenue in the colonies (Vile 143). It further affirmed the right of the British Parliament to pass laws and raise taxes that American colonies had to adhere to (Vile 144). The rising tension between Great Britain and the colonies is best reflected by the well-known Boston Massacre of 1770, in which five civilians were killed by British soldiers (Vile 144). The ever-growing discontent of American colonists resulted in their declaration of independence from Great Britain and the American Revolutionary War (Vile 144). Since the aim of the American Revolution was to create a new system of self-governance, the Articles of Confederation were established (Hummel and Marina 2). However, the Articles of Confederation offered a very weak central government and left almost all power to the individual states (Hummel and Marina 2). The new government was deliberately weak, which followed logically from the fear of British overrule and taxation, that were previously mentioned (Hummel and Marina 2). The central government did not have an executive or judicial branch and therefore was not able to collect taxes or fund its army (Hummel and Marina 3). As a result, the newly established political system proofed to be unsuccessful (Hummel and Marina 3). It became evident that a stronger central government was needed (Hummel and Marina 4). The Constitutional Convention of 1787 brought forth the Constitution of the United States, which overthrew the established government under the Articles of Confederation (Hummel and Marina 4). During the ratification process, the Constitution was amended with the Bill of Rights, which created a strong central government and at the same time protected individual rights (Hummel and Marina 4). Throughout the years, the idea of a conjunction between individual rights and collective rights would become problematic in regard to the Second Amendment of the United States Constitution.

It is a widely held opinion that the Second Amendment was adopted to the United States Constitution for the protection of American citizens (Winkler 61). It secured people’s right to keep and bear arms and emphasized on the militia (Winkler 61). At that time, state militias were formed to protect local residents from attacks and invasions (Winkler 61). But first and foremost, the militia should protect American citizens against a tyrannical federal government (Vile 144). After their war experiences against the British crown, “the framers preferred a militia to a standing army and viewed the militia as a safeguard against governmental oppression” (Vile 144). According to the Militia Act of 1792, all able-bodied, white, male citizens were part of a state militia (Winkler 61). These men were required by law to own guns and protect fellow American residents (Waldman 68). Each state would form its militia with armed citizens who could defend the state from invasions and other threats if necessary (Winkler 62). The Second Amendment was supposed to still people’s fears of a strong central government, which could potentially disarm the state militias (Winkler 61). Most researchers would agree, that the founding fathers established the Second Amendment, so that American people were able to revolt against tyranny and defend themselves (Winkler 19, Waldman 69).

Although the Second Amendment itself does not provide any gun control laws, gun regulation and gun ownership have always existed side by side (Winkler 39). There were numerous gun control laws at the time of the founding fathers, many of which would be considered overly rigid, today (Waldman 68). For example, in Boston it became illegal to keep loaded guns inside the home, due to safety reasons (Waldman 68-69). As mentioned before, possessing guns was highly regulated and only available for white men, who were part of a state-regulated militia (Winkler 40). In almost every state, African American men were banned from militia service and owning guns in general (Waldman 69). According to Adam Winkler, others were “denied the right to gun ownership . . .if they failed a political test of loyalty to the Revolution” (40). Furthermore, guns had to be registered and were inspected by federal officials, a regulation that most modern gun rights activists would not support (Winkler 40). The Founders’ emphasis on ‘a well-regulated’ militia, further indicates that there must have been strict gun control for citizens to exercise their right to bear arms. In order to be well-regulated, strict gun laws had to be in force (Winkler 41).

It can be concluded that the Founders’ vision of the Second Amendment was neither an individual nor a collective right (Waldman 15). It was an individual right to fulfill the civic duty of serving in the militia (Waldman 15). However, it is safe to say that the Constitution was written in a vague language so that it can be changed and amended throughout time. This dilemma leaves enough room for the interpretation of the Second Amendment, which organizations such as the National Rifle Association have misused, in order to gain more profit and sell more guns to American citizens. The next chapter will give examples of the NRA’s mission to spread guns in the United States and how they changed the perception of the Second Amendment within American society. With the help of Supreme Court cases and the NRA’s influence over members of Congress and presidents, the National Rifle Association continues to shape gun culture and gun control laws in the United States.

3. How the NRA rewrote the Second Amendment

After the Civil War, the National Rifle Association was founded by veterans George Wingate and William C. Church in 1871 ("About the NRA"). Originally, a group that promoted rifle marksmanship, it became one of the leading gun rights organization in the United States (Waldman 159). As of 2018, the NRA has more than five million members who claim themselves as “patriots and diligent protectors of the Second Amendment” ("About the NRA"). Although it still offers firearms education, the organization became more and more involved into politics (Waldman 159). Starting in the second half of the 20th century, the NRA succeeded in political lobbying and campaigned against several legislation for gun control policies (Waldman 159). In 1977, the NRA formed its own Political Action Committee to fund politicians and influence members of Congress on gun rights (Waldman 159). The NRA has influenced legislation, initiated lawsuits and endorsed various candidates at local, state and federal levels (Drutman). In 2012, 88 percent of Republicans in Congress received a financial contribution by the NRA at some point in their career (Drutman). The organization is also known for grading members of Congress from A to F on their supportiveness on gun rights ("About the NRA"). In this ranking, an ‘A’ candidate is one who has made an effort to promote and defend the Second Amendment, a ‘F’ candidate is claimed to be a “true enemy of gun owner’s rights” ("About the NRA").

It is noteworthy to investigate in how far lobbyists of the NRA have gained power to prevent many legislations on gun control and influenced many politicians throughout time. The organization’s political campaigns became a powerful force that changed Americans’ perception of the Second Amendment and gun rights (Waldman 160). The NRA convinced American people that the Second Amendment is the foundation of their liberty and that guns are “crucial to the soul of America” (Lopez). They rewrote the Founders’ vision of a well-regulated, armed militia to an individual right to bear arms under the Second Amendment (Lopez). In order to do so, it is important to look at several Supreme Court cases which have been used and supported by the NRA, and ultimately changed the interpretation of the Second Amendment. The next subchapter will present the Supreme Court case of United States v. Miller of 1939, that promoted a collective right to keep and bear arms in connection to a militia. It is followed by the Supreme Court case of District of Columbia v. Heller of 2008, which shows the alteration of the Second Amendment to an individual’s right to possess firearms outside the context of a militia.

3.1. Supreme Court Cases

To better understand how the National Rifle Association rewrote the Second Amendment, it is important to look at two Supreme Court cases that directly dealt with the Second Amendment. Unfortunately, a paper of this scope cannot point out all major gun control laws that have been enacted or prevented. But, it is safe to say that in the beginning, the NRA neglected the Second Amendment and did not even oppose gun control legislation (Winkler 381). On the contrary, the organization was in favor of the National Firearms Act of 1934, which imposed taxation on manufacturers and dealers of certain firearms ("National Firearms Act"). Those included firearms such as, machine guns, short-barreled rifles and silencers ("National Firearms Act"). The National Firearms Act also required that these types of guns have to be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("National Firearms Act"). Also, the National Firearms Act implied that the transport of such firearms across state lines had to be reported to the federal government ("National Firearms Act").

On the 18th April of 1938, gang members Frank Layton and Jack Miller were arrested for possessing an unregistered shotgun and transporting said gun between Claremont, Oklahoma and Siloam Springs, Arkansas, which clearly disregarded the National Firearms Act (Cornell 200-201). However, Layton and Miller argued before the district court that the National Firearms Act was unconstitutional, because it violated the Second Amendment (Cornell 201). Even though the district court held that the National Firearms Act was indeed unconstitutional, the Supreme Court came to a different conclusion (Cornell 201). A year later the Supreme Court heard the case of United States v. Miller, but the defendants did not have any legal representation and did not attend the hearing (Cornell 201). Therefore, the Supreme Court did not hear any arguments supporting Miller and Layton and ruled that the National Firearms Act was in fact constitutional, because the shotgun in question did not have a reasonable relation to a militia (Cornell 202). United States v. Miller was the only case that directly dealt with the Second Amendment in the 20th century (Winkler 62). It interpreted the Second Amendment as a right to keep and bear arms, only if it was connected to an effective militia (Cornell 202). In the Court’s opinion, a shotgun was not used by the militia and had no military service. (Cornell 202). It was argued that this weapon was “not part of the ordinary military equipment or that its use could contribute to the common defense” (Cornell 202). Therefore, the Supreme Court rejected Layton’s and Miller’s claim, that the National Firearms Act of 1934 was unconstitutional (Cornell 203). However, through the phrasing of the decision, the Supreme Court admitted that the interpretation of the militia might change over time (Cornell 203). What it interesting about this case is that the Supreme Court held that the Second Amendment does not guarantee an individual right to bear the shotgun in question (Winkler 390). The ruling of United States v. Miller and its emphasis on a collective right to bear arms set a precedent for the following years (Winkler 391). The decision was praised by gun control advocates, as well as the NRA and other gun rights activists (Winkler 391). On the one hand, the case restricted the Second Amendment to a collective right (Winkler 391). But on the other hand, it supported the views of gun rights advocates, because it protected all other weapons with a connection to the militia (Winkler 392).

In the 1960s, gun violence increased and was of much debate after the assassinations of President John F. Kennedy, as well as his brother Senator Robert F. Kennedy, and Dr. Martin Luther King, Jr. (Waldman 162). As Americans began to worry about gun politics, several bills for gun restrictions were passed, such as the Gun Control Act of 1968 (“Gun Control Act”). This new law banned interstate commerce of firearms to private persons and the sale of guns to convicted felons and the mentally ill (“Gun Control Act”). It further toughened the licensing and regulation of gun dealers (“Gun Control Act”). The Gun Control Act of 1968 displeased the NRA and the organization started to voice its opposition (Waldman 162). Consequently, the ‘Revolt at Cincinnati’ of 1977, became a turning point in NRA’s history (Waldman 163). A schism within the organization led to a dismissal of several board members and made Neal Knox the new chief lobbyist (Waldman 163). The new leadership had a more aggressive approach and wanted to advocate gun owners’ interests (Waldman 163). They established the Institute for Legislative Action, the lobbying arm of the NRA ("About the NRA Institute for Legislative Action"). Through successful lobbying, the NRA obtained the first congressional hearing on abuses of the Gun Control Act in 1979 ("NO SURRENDER - The Firearms Owners Protection Act.”). Since then, the NRA “worked vigorously to pass pro-gun reform legislation” ("About the NRA Institute for Legislative Action"). As a result, the NRA successfully drafted the Firearm Owners Protection Act, which was passed by Congress in 1986 (Yablon). This law loosened certain regulations set under the Gun Control Act of 1968, such as limiting inspections by the Bureau of Alcohol, Tobacco, Firearms and Explosives to once a year and allowing dealers to sell guns at gun shows (Yablon).

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