6. Your Right to Keep and Bear Arms. **
The issues of gun control, gun rights, and the Second Amendment are not settled in either politics or the law. They will continue to be bones of contention throughout your life.
We will discuss two facts. Then we will consider two clauses. Then we will consider six Supreme Court cases. Then we will consider more exceptions to what again seems to be an absolute right.
ONE MILLION GUNS: There are more than one million firearms in private hands within 20 miles of downtown Minneapolis. The same is true in any American metro area with one million people.
FEW RANDOM GUN MURDERS: For the past ten years, there have been an average of 33,000 gun deaths in America each year. Perspective on that tragedy is essential.
* Subtract an average of 21,000 suicides, and you consider 12,000 remaining gun deaths.
* Subtract an average of 8,900 gang-related killings, and you have 3,100 remaining gun deaths.
* Subtract an average of 1,400 domestic killings, and you have 1,700 remaining gun deaths.
* Subtract an average of 600 accidental deaths, and you have 1,100 remaining gun deaths.
* Subtract an average of about 250 shootings by police, and you average 850 gun deaths.
* About 50 police officers are shot to death each year, and you average 800 random gun deaths.
Each of the remaining 850 deaths is a bitter tragedy. Mass shootings, burglaries, robberies, and stranger/rage killings account for 800 random gun deaths out of 335 million people each year.
THE SECOND AMENDMENT: How you view "gun control" and "gun rights" depends on which of two words upon which you focus. 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."
We will discuss two facts. Then we will consider two clauses. Then we will consider six Supreme Court cases. Then we will consider more exceptions to what again seems to be an absolute right.
ONE MILLION GUNS: There are more than one million firearms in private hands within 20 miles of downtown Minneapolis. The same is true in any American metro area with one million people.
FEW RANDOM GUN MURDERS: For the past ten years, there have been an average of 33,000 gun deaths in America each year. Perspective on that tragedy is essential.
* Subtract an average of 21,000 suicides, and you consider 12,000 remaining gun deaths.
* Subtract an average of 8,900 gang-related killings, and you have 3,100 remaining gun deaths.
* Subtract an average of 1,400 domestic killings, and you have 1,700 remaining gun deaths.
* Subtract an average of 600 accidental deaths, and you have 1,100 remaining gun deaths.
* Subtract an average of about 250 shootings by police, and you average 850 gun deaths.
* About 50 police officers are shot to death each year, and you average 800 random gun deaths.
Each of the remaining 850 deaths is a bitter tragedy. Mass shootings, burglaries, robberies, and stranger/rage killings account for 800 random gun deaths out of 335 million people each year.
THE SECOND AMENDMENT: How you view "gun control" and "gun rights" depends on which of two words upon which you focus. 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."
If you support "gun control," then you probably focus on the word "Militia" and you probably believe that the Second Amendment was crafted to protect the "collective right" of states and cities to protect themselves with armed patrols against foreign invaders and domestic tumults. You probably believe that the Second Amendment does not protect a right of private persons to possess "Arms."
If you support "gun rights, then you probably focus on the word "not" and you probably believe that the Second Amendment was to protect the "personal right" of individuals to protect their families, property, and homes from criminals and their constitutional rights from government intrusion.
SIX DECISIONS BY THE SUPREME COURT: The Supreme Court has decided six cases that defined the growth of the "personal right" guaranteed by the Second Amendment. Three of the six decisions involved gun violence and laws in Chicago.
1. IT DID NOT APPLY TO INFRINGEMENT BY STATES OR INDIVIDUALS IN 1872: After the 1872 election in Louisiana, Republicans supported by Black voters won the Legislature. Members of the Ku Klux Klan rallied to seat Democrat candidates. When Black citizens assembled to block the defeated candidates. they were disarmed by the Klansmen, who killed 105 protestors.
President Ulysses S. Grant prosecuted the Klansmen in federal court for depriving citizens of their arms and their Second Amendment rights. The U.S. Supreme Court reversed their convictions, holding: "The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."
U.S. v, Cruikshank, 1875.
2. IT DID APPLY TO INFRINGEMENT BY STATES IN 1886: In 1879, socialist workers formed a private militia to counter corporate posses in Chicago. The state tried and convicted the socialist leader Presser and fined him $10 for organizing an armed militia in violation of state law.
The U.S. Supreme Court upheld Presser's conviction and fine. It again held that the Second Amendment did not restrict the states from restricting militias.
To this day, advocates of the "gun control" and "collective right" view of the Second Amendment rely heavily on both Cruikshank and the main holding in Presser for the proposition that the amendment addresses primarily the arming of militias for the defense of the state and national governments.
However, the Presser Court also stated that states could not restrict the individual right of citizens to keep and bear arms, because that would leave them incapable of uniting to form militias and defend democracy. The Court opined: "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, 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."
3, IT DID NOT APPLY TO CERTAIN FIREARMS: In 1929, gangster Al Capone sent men to kill seven rivals in the Valentine's Day Massacre in Chicago. Congress responded by controlling sawed-off shotguns, short-barrel rifles, and machine guns.
Bank robber Miller was captured, testified against the rest of his gang, and was charged with carrying the restricted weapons in interstate crime. Miller claimed that the new federal law violated his Second Amendment rights. Knowing that Miller would vanish after he was released and the government would win the appeal to the Supreme Court, the federal trial judge ruled against the new law and dismissed the charges. Miller vanished, but was murdered before the Supreme Court ruled.
The Supreme Court upheld the new federal law because it ruled that a sawed-off shotgun was not used for the military purposes of a militia. However, none of the Justices were familiar with military firearms and none of them knew that over 30,000 of them had been used by U.S. troops in the trenches of WW I.
Gun control advocates claim that Miller is a victory because they contend that it rules definitively that the Second Amendment exists only to allow individuals to be armed when they report to serve an official and organized militia, and that Congress and the states may ban or restrict weapons that are not used for current military purposes.
Gun rights advocates claim Miller is a victory because they interpret it to state that ownership of weapons for efficiency or preservation of a well-regulated militia unit of the present day is specifically protected.
U.S. v. Miller, 1929
4. IT IS AN INDIVIDUAL RIGHT, AND NOT TIED TO MILITIA: After the 1968 assassinations of Martin Luther King and Robert F. Kennedy and years of riots, tumult, and the rise of violent gangs and drug trafficking, the District of Columbia passed laws that made it almost impossible for a citizen to own, possess, or use a firearm for self-defense in the District.
A group of diverse plaintiffs sued to claim that the sweeping gun laws violated their individual rights to keep and bear arms. By a 5-4 margin, the Supreme Court struck down the law.
It held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home, and that Washington, D.C.'s handgun ban and requirement that lawfully-owned rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated this guarantee.
The Supreme Court held that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation," that "central to" this right is "the inherent right of self-defense"(id. at 628); that "the home" is "where the need for defense of self, family, and property is most acute," and that, "above all other interests," the second amendment elevates "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
District of Columbia v. Heller, 2008.
5. IT IS AN INDIVIDUAL RIGHT, FOR SELF DEFENSE, AND BINDS LOCAL GOVERNMENT: Chicago virtually banned private ownership of handguns, rifles, and shotguns with a series of laws. By another 5-4 margin, the Supreme Court struck down aspects of the first three decisions on the Second Amendment.
XMcDonald v. City of Chicago, 2010.
6. IT MAY APPLY TO TASERS AND OTHER MODERN WEAPONS FOR SELF DEFENSE: Massachusetts banned the possession and use of stun guns. Jaime Caetano had been hospitalized by a beating by her ex-boyfriend. She obtained a taser which she brandished to end another assault by the boyfriend. Police learned of her possession of the weapon. She was indicted, tried and convicted.
In 2016, the unanimous U.S. Supreme Court reversed her conviction and returned the case to the Massachusetts courts for further resolution. The case ended when Caetano was found not guilty in a separate proceeding after an agreement with prosecutors.
The Supreme Court stated that "the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that "the Second Amendment right is fully applicable to the States."
In a concurring opinion, Justices Alito and Thomas stated: "if the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming people than about keeping them safe".
Caetano v. Massachusetts, 2016.
WHAT PART OF "SHALL NOT BE INFRINGED" DON'T YOU UNDERSTAND?: As with so many other guarantees in the Bill of Rights, there are many exceptions to the Second Amendment.
1. PEOPLE: Federal and state laws restrict or ban about a third of U.S. residents from possessing firearms. Note that there are significant overlaps in many of these groups.
1.This includes over 75 million people are under 18. Federal law bars them from owning or possessing handguns without supervision.
2. Federal law also bans the possession of any firearms for an estimated 20 million people who have consumed illegal drugs in the past month. Prosecution for illegal possession of a firearm can be triggered by discovery of one joint, paraphernalia or a positive drug test.
3. Over 12 million undocumented or illegal immigrants. Federal law bars them from possessing firearms.
4. Over 6 million are felons. Federal law bars them from possessing firearms.
5. Over 3 million have had involuntary mental health commitments. Federal law bars them from possessing firearms.
6. Over 2 million people have been convicted of felonies or misdemeanors involving domestic violence.
7. Over 1 million are fugitives from warrants. Federal law bars them from possessing firearms.
8. Less than 1 million other people are barred by federal law from possessing firearms. These include persons who have renounced their U.S. citizenship, persons who have dishonorable discharges from the U.S. military, and persons subject to certain restraining orders.
2. WEAPONS: As noted above, the Supreme Court has upheld restrictions on:
10. machine guns;
11. sawed-off shotguns; and
12. short-barrel rifles.
.
Other federal laws restrict possession of:
13. silencers;
14. flame-throwers;
15. artillery;
16. explosives;
17. hand grenades;
18. weaponized drones; and
19. bombs.
State laws further restrict the possession or carrying other types of weapons. For example, North Carolina prohibits the carrying of a crossbow off one's property unless one has a carry permit for a firearm.
3. PERMITS: Federal permits are required to possess certain types of automatic firearms, silencers, dynamite, and certain other explosives.
Some states have also been upheld in requiring permits to carry firearms off the owner's property. Over 30 states allow handguns to be carried openly without permits or licenses. Many states require permits to carry concealed weapons in public.
4. PLACES: Federal law makes it a crime to possess an unauthorized firearm in:
20. a school zone.
Federal regulations also regulate the possession of a firearm in:
21. federal facilities;
22. federal lands;
23. military bases; and
24. other places under federal supervision, such as power plants.
State laws further restrict unauthorized possession of firearms in a variety of locations, including:
25. college campuses;
26. government buildings;
27. parks;
28. places of worship;
29. places of business;
30. businesses that sell alcohol; and
31. public lands.
6. OTHER STATE REGULATIONS: Various states have imposed a variety of other restrictions or requirements on the purchase, ownership, possession, and public carry of firearms and weapons. These include:
1.This includes over 75 million people are under 18. Federal law bars them from owning or possessing handguns without supervision.
2. Federal law also bans the possession of any firearms for an estimated 20 million people who have consumed illegal drugs in the past month. Prosecution for illegal possession of a firearm can be triggered by discovery of one joint, paraphernalia or a positive drug test.
3. Over 12 million undocumented or illegal immigrants. Federal law bars them from possessing firearms.
4. Over 6 million are felons. Federal law bars them from possessing firearms.
5. Over 3 million have had involuntary mental health commitments. Federal law bars them from possessing firearms.
6. Over 2 million people have been convicted of felonies or misdemeanors involving domestic violence.
7. Over 1 million are fugitives from warrants. Federal law bars them from possessing firearms.
8. Less than 1 million other people are barred by federal law from possessing firearms. These include persons who have renounced their U.S. citizenship, persons who have dishonorable discharges from the U.S. military, and persons subject to certain restraining orders.
2. WEAPONS: As noted above, the Supreme Court has upheld restrictions on:
10. machine guns;
11. sawed-off shotguns; and
12. short-barrel rifles.
.
Other federal laws restrict possession of:
13. silencers;
14. flame-throwers;
15. artillery;
16. explosives;
17. hand grenades;
18. weaponized drones; and
19. bombs.
State laws further restrict the possession or carrying other types of weapons. For example, North Carolina prohibits the carrying of a crossbow off one's property unless one has a carry permit for a firearm.
3. PERMITS: Federal permits are required to possess certain types of automatic firearms, silencers, dynamite, and certain other explosives.
Some states have also been upheld in requiring permits to carry firearms off the owner's property. Over 30 states allow handguns to be carried openly without permits or licenses. Many states require permits to carry concealed weapons in public.
4. PLACES: Federal law makes it a crime to possess an unauthorized firearm in:
20. a school zone.
Federal regulations also regulate the possession of a firearm in:
21. federal facilities;
22. federal lands;
23. military bases; and
24. other places under federal supervision, such as power plants.
State laws further restrict unauthorized possession of firearms in a variety of locations, including:
25. college campuses;
26. government buildings;
27. parks;
28. places of worship;
29. places of business;
30. businesses that sell alcohol; and
31. public lands.
6. OTHER STATE REGULATIONS: Various states have imposed a variety of other restrictions or requirements on the purchase, ownership, possession, and public carry of firearms and weapons. These include:
32. Require a permit to purchase a firearm;
33. Require a firearm to be registered with law enforcement;
34. Require a firearm owner to be licensed;
35. Restrictions on automatic weapons, ammunition, magazines, or ammo belts;
36. Limits on magazine capacities;
37. Restrictions on open carry;
38. Restrictions or permits for concealed carry;
39. State preemption of any local gun restrictions;
40. State limits on guns that are federally limited or restricted;
41. Restrictions on transportation of weapons or ammunition;
42. Waiting periods for purchases or transfers;
43. Background checks for private sales;
44. "Castle Doctrine" laws restricting defense of a residence or business; and,
45. "Stand Your Ground" laws restricting self-defense or defense of others.
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