[University]
Introduction
Perhaps no clause in the U.S. constitution has been so misconstrued and debated as the Second Amendment. In fact, even the Supreme Court could not make up their mind as to the true meaning of “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”. A decisive interpretation to this clause has been quite elusive. Since its ratification, only a few cases have found its way to the Supreme Court while the court’s decision has not helped clarify the matter more than being obscure. As observed by Brooks, the first Supreme Court ruling regarding the Second Amendment was made in 1876 in U.S. v. Cruikshank. In this case, the Supreme Court ruled that the second amendment does not guarantee an individual’s right to bear arms and ten years later, in Presser v. Illinois, added that the Federal Government has limited jurisdiction on gun control as compared to the States. This ruling implies that there are only certain individuals that are allowed to bear arms as the constitution permits as well as it is the burden of the states to create and impose their own gun control legislation. In 1894, the issue about gun control and the right to bear arms was raised again in the case of Miller v. Texas. Miller challenged the state of Texas’s legislation that bans the possession of concealed weapons citing his constitutional right in the Second Amendment. Again, the Supreme Court ruled in favor of Texas and stated that the Second Amendment does not apply to state laws citing Texas’ gun control as an example. On a different note, the Supreme Court ruled in favor of Dick Heller in District of Columbia v. Heller in 2008 stating that the Second Amendment upholds the individual’s right to bear arms even though he is unconnected to the state militia as long as it is used for purposes of self-defense. In McDonald v. City of Chicago in 2010, the Supreme Court contradicted its previous rulings about the limitation of the Second Amendment between the federal government and the state by saying that the law “applies equally to the federal government and the states”. It seems that America’s highest judicial body could not quite decide on its stand over the right of the people to bear arms and gun control which raises much ambiguity in the interpretation of the Second Amendment. As simple as this clause in the Second Amendment may seem, the terminology used such as ‘A well-regulated militia’, could not be fully established. The ‘well regulated militia’ clause raises questions such as, what was James Madison thinking when he drafted this clause of the constitution? Does the term ‘well-regulated militia’ refers to all legal citizens of the United States or is it only addressed to a chosen few? But there is a funny side to this story. As observed by Blumenthal, was Madison drunk when he wrote the second amendment? But seriously, was he?
English Roots of the Second Amendment
The American constitution is somehow patterned and heavily influenced by the British. Even the founding fathers of the constitution have been inspired by English legislative philosophers such as Coke, Hobbes, Locke, Blackstone, etc.. Understandably so, since the settlers of the new world were once British citizens and the U.S. have been under the colony of England until its independence in the late 1700’s. The Second Amendment can be considered as an American version of the English traditional law which requires its citizens to be armed. The English evolution of this law can be traced back to the rule of King Alfred between 871 and 901 A.D when England was under constant threat of invasion from nearby kingdoms. In order to defend the realm, the king orders his subjects to provide themselves with weapons. In 1181, King Henry II formalized this idea and made it an obligation for each able bodied men to bear arms. According to Vandercoy, the assize did not only require civilians to possess arms, it also inhibits them to sell, pledge or isolate their weapons from their possession. . It should be noted that in these early years of England’s history, the king maintains only a small standing army and relies heavily on his subjects especially the nobles for defense. In times of war, a noble may be required to raise a standing army at his expense for the defense of the king and the realm. It is, therefore, important that the realm maintains armed subjects which can be utilized when the need arises. This tradition of keeping a citizen army moved on until the Tudor dynasty where Henry VIII ordered fathers to provide long bows for boys aged 7 to 14 and to train them as well. In the reign of Queen Elizabeth I, knights were commissioned to summon these citizen armies occasionally and some have been involved in keeping the peace and order in their community. The main purpose of the musters was for the queen to know the capabilities of her armed citizenry pertaining to the quantity, quality and abilities of her subjects. The armed citizens included adults and children above sixteen who are able to bear arms and use these weapons either in horseback or on foot. It was also during Queen Elizabeth I’s time that the term ‘militia’ emerged which refers to civilian armed men.
The changing political scenario of England in the 1600’s has added a new perspective to the concept of an armed citizenry which has greatly influenced American political thinkers. As the absolute power of the king has been increasingly questioned, a power struggle between the English parliament and the monarchy ensued which divided the militia into two factions; those who oppose monarchy and those who support the rule of kings. The Stuart kings found themselves in this predicament and Charles I, sensing his vulnerabilities tried to dissolve the parliament and organize his own standing army. When Charles I tried to disarm Scotland, the country revolted and he was forced to call on parliament once again in 1940 for the purpose of soliciting their help of suppressing the rebellion. However, the new parliament is just as indifferent to the King as the old one and demanded that his standing army in Ireland be disarmed. Subsequently, the new parliament tried to take full control the militia by issuing a decree that no militia units would be mustered unless authorized by the parliament. The King also issued a similar decree which resulted to a civil war where both parties tried to disarm each other. The parliament gained the upper hand in the skirmish but it failed to represent the people. As Charles was executed in 1649, so were the militia that was mustered by parliament turned into standing armies. This organized militia turned into standing armies gained enough power that one of its leaders, Oliver Cromwell, gained control of the parliament and established himself as a tyrant. Further disarmament ensued as Cromwell dissolved Parliament and created a military government. Cromwell’s unexpected death restored monarchy when Charles II returned. Without an army loyal to him, Charles was uneasy and become determined to organize his own. In order to disarm the population, Charles II enacted the Game Act of 1671 which makes it illegal to own a firearm unless they are authorized to hunt. The Act provided Charles’ government the power to seize arms to those who are considered as threats while retaining those who are not. Charles II’s successors further increased England’s standing army loyal to the throne while ensuring that the public was kept unarmed. While being ruled by tyrants, people viewed the keeping of standing armies and the general disarmament with disdain and a threat to their liberties. During this period, the possession of arms was seen as a necessity and a deterrent to tyranny. In 1689, England transitioned into a parliamentary government and the people’s grievance towards tyranny reflected in the parliament’s Declaration of Rights. The first version of this declaration was stated as thus, “It is necessary for the publick Safety, that the Subjects which are Protestants, should provide and keep Arms for their common Defence. And that the Arms which have been seized, and taken from them, be restored”. The use of the term ‘necessary’ and ‘should provide’ entails an obligatory stance and so a second version was drafted to reflect the right as a privilege rather than an obligation. The second version was thus drafted as, “That the Subjects, which are Protestants, may provide and keep Arms, for their common Defence”. It should be noted that the use of ‘may’ in this clause implies that citizens are not required to bear arms but they may if they want to. It is commendable how the English parliament put some foresight in making the last and final version of its declaration in saying thus, “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law”. By adding the term ‘as allowed by Law’, the British parliament was giving a leeway for future legislations to regulate the use of arms as it may deem necessary. Though the law specifically mentions Protestants as the subject, a ‘contemporaneous legislation in 1689’ extended the rights to Catholics . Several version was suggested by Madison which expands the militia’s rights to bear arms in the English Bill of Rights in order to project the law as an individual right. Finally, in 1791, the final language of the Second Amendment was ratified in the most concise yet ambiguous statement.
The Right to Bear Arms in the American Context
According to Hardy, “The American experience with citizen armament had been more extensive even than that of Britain”. It is no wonder, therefore, why the founding fathers have been as urgent in their drafting of the Second Amendment as to not giving it a second thought (or as it seemed so). Before the Second Amendment was drafted, America was under British rule and has long been vying for independence. As the British and American relationship soured, state governors greatly encouraged civilians to carry firearms in view of the impending British invasion. Such was the desire of the revolutionary government to win the war against the British that those who does not have the capacity to buy firearms are being supplied with guns by the government. In anticipating the British, the passionate yet arguably short-sighted Patrick Henry exclaimed, “Resolved, that a well regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government”. After defeating the British, drafters of the U.S. constitution began to work on the issue of the armed militia. The first plan was to keep a select militia to become the nation’s standing army while disarming the population thereafter. This idea, however, was abandoned as lessons from the European experience were raised. To resolve the militia issue, James Madison formulated the Second Amendment after Henry’s proposal on a slightly different note. For Madison, the arming of civilians is not only related to military duty or service; rather, it is an individual right that guarantees the freedom of the person to possess arms that he can use to defend himself even from an oppressive government if necessary.
Rationale behind the Right to Bear Arms
Blackstone, in his commentaries, provided the rationale behind the right to bear arms. According to him, the purpose of this right is to “to restrain the violence of oppression” and of “self-preservation”. As based on the English Declaration of Rights, the right of the people to bear arms for the reason of oppression from the state or a tyrant is pointed out as the collective right while the right to defend his person is individualistic. As a collective right, special attention should be given to the term ‘militia’ as indicated in the Second Amendment of the U.S. constitution. The National Defense Act of 1916 defines militia as follows, “The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age, except as hereinafter provided, not more than forty-five years of age”. Though this declaration implies that all able bodied citizens within the specified age bracket is considered as militia, the use of the term ‘well-regulated militia’ in the Second Amendment as ‘being necessary to the security of a free state’ implies grouping. And how does this implication of grouping relate to the understanding of the Second Amendment? First, it should be noted that there are two groups of militia in the U.S. One considers themselves as the organized militia and the other considers themselves as the unorganized militia. The organized militia refers to the National Guard while the unorganized militia refers to male civilians that are not members of this group. The ‘well-regulated militia’ term that was used in the Second Amendment can be easily confused with the organized group of militia or the National Guard which subsequently exempts the unorganized militia from being ‘necessary to the security of a free state’. As based on this analogy, if the unorganized militia is considered as unnecessary to the security of the state, would they be also allowed to bear arms? If they are allowed to bear arms, the significant rhetorical question would be; what is the relevance of the term ‘well-regulated militia’ in the first place? If all people are allowed to bear arms (including women), the term ‘well-regulated militia’ has certainly no relevance or meaning except perhaps to create confusion if, for instance, it was placed there deliberately. For the benefit of the doubt, let us assume that James Madison (the person responsible for all these troubles), by saying ‘well-regulated’, really meant ‘well-controlled’ or ‘well-governed’. If the militia (or the people) is well-governed or well-controlled, then what is the purpose of giving the people the right to bear arms?
Aside from the collective purpose of defense against oppression, according to Blackstone, the other purpose of the right to bear arms pertains to the individual’s right to self-defense. In the U.S. constitution, the right to self-defense is also governed by The Fourth Amendment, The Eighth Amendment and the Due Process Clause (Hall, J., 1999). The provisions under these Acts justifies the use of force, may it be deadly or not, as long as it falls under self-defense, defense of others and public authority defense (Harmon, R., 2008). The self-defense clause was initially restrictive. This right has its roots with the English castle doctrine which refers to the home as one’s own castle. Under the England’s common law, a person who is attacked has a ‘duty to retreat’ in order to avoid deadly confrontation . However, the person can only retreat as far as his home and thereafter, he may use deadly force if necessary, as it is tantamount to pushing him to a wall. According to Suk, home intrusion places the intruder “beyond the protection of the law and suspended the state monopoly on violence”. Instead of restricting gun ownership in the confines of one’s home as what the ‘castle doctrine’ suggests, some U.S. states has altered its meaning giving people authority to carry arms beyond the perimeter of their home or property. In 2005, a bill that expands the jurisdiction of the Castle Doctrine was initiated in Florida which states that, “a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony” (Epps, G., 2012). The statement, ‘any place where he or she has a right to be’ is an obvious alteration or addition to the Castle Doctrine.
The Implications of Unrestricted Possession of Firearms
The worst mass shootings in the U.S. history have been perpetrated by civilians. In April 16, 2007, Seung-Hui Cho, a 23 year old student goes on a shooting rampage that killed 32 people in Blacksburg, Virginia. A few months later in Omaha, Nebraska, 19 year old Robert Hawkins shot and killed 8 mall shoppers before committing suicide. And who would be able to forget the Sandy Hook incident when 20-year-old Adam Lanza armed with a semi-automatic AR-15 assault rifle, a Glock and as Sig Sauer, stormed the Sandy Hook Elementary School killing 26 people mostly children aged seven and six years old. According to surveys, “The United States has the highest gun ownership rate in the world and the highest per capita rate of firearm-related murders of all developed countries”. As recent studies suggests, the more number of people were allowed to carry guns, the more unsafe a country is. Clearly, this finding is a direct contrast to the provision of the Second Amendment about the right to bear arms as necessary to the security of the state. How can a state be secure when internally, its citizens could not feel any safer? Another apparent problem with the Second Amendment aside from being ambiguous is its applicability to the modern political scenario. The United States’ political culture has significantly changed over the past decades that the perceived threats of tyranny are almost non-existent. In terms of invasion, if it is indeed possible, invaders would not possibly carry individualized weapons which would make it necessary for every American citizen to carry arms in order to defend themselves. With the current technology, invasion would take the form of a nuclear threat or any other political maneuvering other than engaging the enemy face to face with a rifle in hand. Perhaps the Second Amendment was applicable during the time of the founding fathers or might be even necessary. However, with the increasing incidents of civilian shooting rampages across the country, the government is beginning to feel the pressure and has cautiously responded with the National Firearms Act of 1934 which seeks to control firearms by increasing its tax, The Federal Firearms Act of 1938 which prohibits the selling of guns to convicted criminals, the Gun Control Act of 1968 which prohibits mail order of certain types of guns, the Brady Handgun Violence Protection Act which required a five-day waiting period and background check for the sale of handguns and the Assault Weapons Ban which banned the selling of assault rifles to civilians. Despite these restrictive actions, the contradictory stance of the Second Amendment would still be a big stumbling block to the efficiency of these measures.
Conclusion
Untimely and obviously irrelevant is the provision of the Second Amendment to the modern context. As far as its language is concerned, its ambiguity has created an unnecessary challenge in its interpretation that even the Supreme Court could not make a clear stand on the matter. With the ease of procuring a firearm in the U.S., coupled with the perceived immunities brought by the Second Amendment, it is doubtful if gun control legislations will realize its full potential. Unless this clause in the U.S. constitution is amended, the citizens of this country would never realize the true meaning of security given that all people, whether competent or not, has the right to keep and bear arms. The people should not suffer an erroneous legislation as much as they should suffer losing their liberties. And yet when change is necessary, then it should be done even if it means amending the constitution. Whether Madison was drunk or not when he drafted the Second Amendment could not be confirmed but obviously, he made the wrong choice of words.
References
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