Various forms of gun violence such as mass shooting have become an unfortunate reality in the past and present history of the United States. After every incident, the debate that mainly arises is whether the lawmakers should resort to enacting more gun control laws. Critical to appreciate is that a majority of these debates occur after shocking gun violence such as school killings or a public shooting has occurred thereby causing excessive emotional arguments. The US under the Second Amendment allows people the ‘'right to keep and bear arms'' freedom that should not be infringed. Bloomberg (2013) illustrated that the Second Amendment forms one of the most controversial debates in contemporary America with proponents citing the inherent right guaranteed by the founders of the nation while the opponents are reading a historical misinterpretation that continues to jeopardize the safety of Americans. The Second Amendment and the gun control debates are therefore an inseparable entity where the former is seen as a right enacted to limit the government's ability to restrict or prohibit private ownership of guns.
Interpretation of the Second Amendment
The interpretation of the Second Amendment has always drawn two different points of views from the proponents and opponents of gun control. Those who advocate for stricter gun control have stressed on part of the provision that highlights on the militia clause arguing therefore that the purpose of the clause was to guarantee state militia maintenance against the federal government. The ‘' well-regulated militia'' clause has caused immense confusion especially in the debate over gun control. It has made it difficult to determine what the founding fathers of the nation meant by their words ( Krouse, 2012). Advocates and legal scholars have attempted to delve on the issue with many the proponents of strict gun control arguing that it could have meant that only the citizens organized in official militias in any local or regional jurisdictions are the ones allowed to own a gun. Further, advocates of this school of thought have shown allegiance to a theory known as the collective-rights theory, which asserts that the framers of the constitution in drafting the amendment were critical of the concentration of military power by the federal government.
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On the other hand, there is a group of people who tend to oppose the stricter gun laws with regards to how they interpret the constitution. The opponents interpret through the lenses of ‘'militia-of-the-whole'' concept. In this concept, these group of people believes that the framers of the constitution the ‘'militia-of-the-whole'' was required to carry out their duties using privately owned weapons. Secondly, Lott (2013) intimated that they believe that this clause should not be regarded as an amplifying but rather as a qualifying clause meaning that the words ‘'well-regulated militia'' should not be viewed as a criterion for exclusion but as a general phrase that also represents the rights of a person to self-defense. Throughout the history, those who have interpreted the amendment using the individual-rights perspective have always carried the day because at the current situation in the country is that there are still calls from various sectors to enhance stricter gun control measures to avoid the unprecedented rates of homicides and suicides related to guns.
The Supreme Court Interpretation of the Second Amendment and Gun Control
The Supreme Court of the US has also pronounced itself on the constitutionality of the Second Amendment which has been used as a basis of opposing gun control in the country. In the District of Columbia v. Heller decision of 2008, the Supreme Court issued it stance for the first time since 1939 where it interpreted the amendment to the constitution. The court, in the 2008 decision agreed that the Second Amendment gave the citizens a right to possess arm for lawful purposes such as self-defense. In doing so, the decision reversed some of the gun controls that had been enacted in the District of Columbia including the one that banned the possession of handguns and another that required firearms in the home setting to be trigger-locked or dissembled. In the court's interpretation, this was a violation of their rights provided in the constitution. Before the decision made in District of Columbia v. Heller, the Supreme Court had pronounced Second Amendment in the case of the United States v. Miller in 1939. In this case, Jack Miller was indicted for transporting unregistered firearms in violation of the National Firearms of 1934 ( Bloomberg, 2013). In his argument, Miller asserted that the restriction of interstate transportation of firearms was in violation of the Second Amendment. However, the Supreme Court invoked the well-regulated militia clause to show shortcomings in the case of Miller and later proved that the provisions of the National Firearms Act were constitutional.
In another decision in the Parker v. District of Columbia, the US Court of Appeals asserted its thoughts on the Second Amendment and the broader issue of gun control (Rosenthal, 2014). In the judgment, it ruled that some of the gun control laws that had been put by the District of Columbia were against the provisions of the Second Amendment. Some of the gun control regulations included a ban on the registration of handguns, the requirements that guns be kept unloaded and locked, and the prospect of carrying a gun without a license. The court pronounced itself by asserting that people had a right to carry weapons for self-protection and also to own handguns in their homes without necessarily unloading them and putting them on lock. However, some of the questions left unanswered in the District of Columbia v. Heller include whether the Second Amendment rights restricted the regulation of firearms by the state. However, it is vital to take note some of the vital statements in the Heller judgment including the assertions that the Second Amendment is not unlimited. ‘’It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’’ ( Rosenthal, 2014). The decision goes ahead to assert that the Second Amendment was limited to the mentally ill and also to those who intend to carry the guns to sensitive places such as government buildings and schools. The court also supported the prohibition of carrying ‘'dangerous and unusual weapons.'' Therefore, this sets a leeway for the gun control initiatives in the country.
The Constitutionality of the Background Checks
One of the main hallmarks of the gun control is the background checks. The gun retailers are required to contact the Federal Bureau of Investigation (FBI) whenever an individual presents themselves to purchase a firearm. The FBI utilizes information provided by the National Instant Criminal Background Check System (NICS) to determine if the purchaser is prohibited. Some examples of prohibited purchasers include fugitives, felons, domestic abusers, and mentally ill individuals. Wintemute (2013) illustrated that the background checks took effect in 1994 with the law having blocked more than 3 million sales of guns to potentially dangerous purchasers. However, with reference to the Second Amendment, some people believe that carrying out background checks is constitutional while others feel it is it is unconstitutional. The Brady campaign to prevent gun violence asserts that the universal background checks are important because they enhance public safety and at the same time respecting the citizen’s rights to own firearm.
Opponents of the background checks argue that it violates the First Amendment because it compels an individual to speak and further provide information regarding themselves. One of the queries put forth in a background check includes information about the client's mental health. Other questions that could also feature include those asking on the client's engagement in domestic violence and if they have taken part in any illegal drug use. As such, this is seen as a violation of the First Amendment because these are private questions that should have nothing to do with the welfare of the state. Furthermore, opponents argue that the background checks are also a violation of the right against self-incrimination stated under the Fifth Amendment. During the process, one is required to provide evidence against themselves to be given a gun. It is also regarded as a violation of the Tenth Amendment because providing the information is not explicitly outlined as a power of the federal government in the constitution.
In addition, with reference to the Second Amendment’s clause ‘’keep and bear arms,’’ opponents of background check believe that it is unconstitutional because it goes against the Bill of Rights. Undertaking the background check is seen as asking the government to provide the citizens with an inherent right provided for by the constitution of the land. Furthermore, no authorization is required to eliminate any given right except under very limited circumstances. On the contrary, supporters of the background measures have gone to assert the constitutionality of the process by giving evidence mainly from the interpretation of the Supreme Court's decision. In the Heller decision, the court provided certain examples of the gun control laws that it found presumptively lawful. Examples include the laws that ban gun possession by felons and the critically mentally ill. The court also found favor with the laws that banned possession of a firearm in schools and government buildings. It also supported the laws that asserted conditions on the commercial sale of guns. Important in this decision is that the court agreed to the fact that the list was not exhaustive. Therefore, this gives the proponents of gun control an impetus that indeed the background checks, which mainly take care of the designated laws, is a constitutional process.
Constitutional Gun Control Law
The National Rifle Association (NRA) has always waged propaganda against any measure that is geared towards enhancing gun control. Many of the gun control laws that are being proposed in the wake of mass shootings are constitutional and do not infringe the Amendment as intimated by the NRA. As such, Record and Gostin (2013) asserted that under the Heller decision made by the Supreme Court, it would be constitutional for the federal or state government to enact and force some of the measurements proposed by various gun control movements. One of the laws that the court presumed constitution is the banning the possession and sale of military assault weapons such MR-167 including other high capacity magazines that have been used in many shootings such as the most recent Douglas Stoneman High school shooting. Many states have started adopting this legislation, and it is no longer regarded as an infringement on the Second Amendment. Secondly, Spitzer (2014) postulated that universal background check is also regarded constitution including the act of closing down the gun-show loophole. Another constitutional gun control law that is taking root in the country is the preventing of certain people especially the mentally ill, individuals existing in the terrorist watch list, and those with a history of committing domestic violence from owning guns. Convicted felons are also on the authority’s radar and cannot be allowed to purchase guns.
Ordinary civilians have also received bans on certain firearms such as handguns especially in sensitive areas such as schools, churches, bars, and government offices. Some states, notably New Jersey, California, New York, Massachusetts, and District of Columbia have enacted bans on assault weapons following the Heller decision by the Supreme Court. The states, together with Colorado have also enacted bans on high capacity magazines. The above mention states, together with Oregon, Nevada, Washington, Iowa, Nebraska, and North Carolina have mandate universal background checks ( Record & Gostin, 2013). It is imperative to note that none of these laws have been successfully challenged as unconstitutional. Therefore many proponents of gun control laws view the fight on background checks by bodies such as NRA as pure politics without any constitutional basis.
The Firearm Owner’s Protection Act (FOPA)
Another constitutional basis of gun control was provided by the Firearms Owner’s Protection Act of (1986).The implementation of FOPA was a positive step in gun control because it limited the civilian ownership of some of the deadliest weapons that threatened the peace and stability in the country. Therefore the law restrained the supply of machine guns to the civilians. It also enhanced a lawful background check such as fingerprinting, compulsory onerous taxes, and also taking a national registry of individuals owning the automatic guns. Therefore FOPA legislation underscored the important duty that lawmakers have in enhancing gun control by limiting some of the presumed laws provided under the Second Amendment.
The Congress and Gun Control
The Congress is the lawmaking organ of the US, and as such, it plays a critical role in making amendments to the constitution with regards to the Second Amendment and gun control. The aftermath of the major shootings in the country has always seen a call on the Congress to enact laws that strengthen the mandatory and strict gun controls in the country. One of the biggest obstacles that the Congress has faced in the recent past in an attempt to create better gun control laws is the NRA. Schildkraut and Hernandez (2014) intimated that the powerful body has consistently opposed any changes I the direction of firearm control claiming that it is a violation of the Second Amendment rights that would set a center stage for more controls and restrictions. It has objected some of the suggested changes insisting that the recent mass shootings could only be controlled by improving on a better mental health system and investing more on securing the most sensitive areas that have experienced violence in the past such as schools. With the existence of major loopholes in the gun control system, the Congress continues to make a certain constitutional proposal that could prevent cases of gun violence prevalent in America.
As stated earlier, the background check is one of the most critical areas that have received widespread attention in gun control. The Congress is proposing to strengthen the existing policies around the national background check. It is apparent that many agencies have failed to report criminal records to the NICS which is a body used to verify if an individual is eligible to possess a gun. Therefore, such a bill would increase enforcement, giving states finances to report to the NICS and punishing any agencies that do not upload their records to the system. One of the bills that have been proposed in this regard is the Fix NICS Act has received a bipartisan approach including support from the executive arm of the government. Another proposal brought in front of the Congress is known as the “Toomey-Manchin'' proposal that was earlier rejected in 2013 ( Schildkraut & Hernandez, 2014). Initially, the proposal aimed at expanding gun control from only gun sales to also gun shows. However, the bill lost in 2013 and 2015 respectively when it was put to the vote. Currently, the law only allows that the background checks be conducted when licensed gun dealers are conducting sales. However, sales that occur during shows and on the online platforms majorly go unnoticed.
When such a proposal is passed, the background checks would be expanded to cover gun shows and internet sales. However, the bill does not enjoy the support of gun rights groups, a factor that made it continuously fail to reach the Senate floor. Another constitutional discussion that goes on with regards to gun control is increasing the minimum age of buying an AR-15 from 18 years to 21 years. The Senate is currently working on a bill that would see the minimum age to buy an AR-15 rifle go up to 21 ( Squires, 2012). The NRA has however opposed the move asserting that prohibiting law-abiding citizens between the age of 18 and 20 from acquiring the rifles is an egregious violation of their constitutional rights to self-defense. Another legislation that is proposed is banning the ‘'bump stock' 'which is a tool that could be used to convert a semiautomatic weapon into a fully automatic weapon. The proposal followed the Las Vegas shooting that led to the death of 59 people with scores getting injured. The shooter was believed to have used the semiautomatic weapon converted into an automatic using the device.
The Constitutionality of the Concealed Weapon
It is first and foremost critical to appreciate that the American constitution recognizes that different states have different cultures, needs, and traditions when it comes to issues dealing with guns. That is the major reason why many states engage in the creation of their own laws with regards to public safety, concealed weapons, and policing among others. Under the current law, every state allows their citizens some form of concealed carry, which vary from one state to the other. A majority of the states require an individual to possess a permit before they can be allowed to carry a hidden gun legally. Some also require extensive background checks while others require an individual to undergo heavy training. However, Ginwalla et al . (2014) asserted that there are states that do not require any permit for one to carry a concealed weapon. Important to note that there are states that do not require an individual to have any firearm proficiency while others do not require individuals to have a clean criminal record to be given an opportunity to carry a concealed weapon.
In conclusion, the constitutional issue of gun control is a broad issue that can be looked into various perspectives. The interpretation of the Second Amendment is one of the most contentious issues surrounding gun control with people lacking a conclusive or a clear determination of what the founders of the nation meant especially with the “well-regulated’’ clause. The Supreme Court of the United States has also delved into the constitutionality of gun control by outlining some of the limitations of the Second Amendment. One of the methods used in gun control in the US is through the background checks which has also received backlash from various quarters with assertions that it violates not only the second but also the first and the fifth Amendments. The FOPA laws also played a critical role in enhancing gun regulations, but in contemporary America, the most power to enhance gun control is left to the federal government and individual states. The NRA is among the civil groups that have sought to protect the rights of the citizens by opposing the gun control initiatives. However, in the wake of the shootings, the Congress has been prompted to step in and propose stricter rules of gun control by changing the laws.
References
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Rosenthal, L. (2014). The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control. Wash. UL Rev. , 92 , 1187.
Schildkraut, J., & Hernandez, T. C. (2014). Laws that bit the bullet: A review of legislative responses to school shootings. American Journal of Criminal Justice , 39 (2), 358-374.
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Squires, P. (2012). Gun Culture Or Gun Control?: Firearms and Violence: Safety and Society . Routledge.
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