Gun politics in the United States

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Gun Politics in the United States, incorporating the political aspects of gun politics, and firearms rights, has long been among the most controversial and intractable issues in American politics. At the heart of this debate is the relationship between the rights of the citizen and the government's duty to provide for the common defense^[1] versus the government's authority to regulate firearms and its duty to prevent crime and maintain order.^[2]

Gun politics
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Contents 1 Overview 2 Gun culture 2.1 Origins of gun culture 2.2 Guns in popular culture 3 Political divides 4 Types of firearms 5 History of gun politics 5.1 Revolutionary War 5.2 Jacksonian era 5.3 Antebellum era 5.4 Reconstruction era 5.5 Early 20th century 5.6 Late 20th century 5.7 Early 21st century 5.8 Political lobbying 6 Notable individuals 7 Political arguments 7.1 Rights-based arguments 7.1.1 The Second Amendment argument 7.1.2 State constitutions 7.1.3 Right of self-defense 7.1.4 Security against tyranny and invasion 7.2 Public policy arguments 7.2.1 Importance of a militia 7.2.2 Firearm deaths 7.2.3 Relationships between crime, violence, and gun ownership 7.2.4 Security against foreign invasion 8 The courts and the law 8.1 Supreme Court decisions 8.2 Circuit court 8.3 Gun laws 9 See also 10 Notes 11 References 12 External links 12.1 Pro gun regulation links 12.2 Pro gun rights links

[edit] Overview

U.S. Firearms Legal Topics
Assault weapons ban
ATF (law enforcement)
Brady Handgun Act
Federal Firearms License
Firearm case law
Firearm Owners Protection Act
Gun Control Act of 1968
Gun laws in the U.S. — by state
Gun laws in the U.S. — federal
Gun politics in the U.S.
National Firearms Act
Second Amendment
Straw purchase
Sullivan Act (New York)
Violent Crime Control Act

Gun politics in the United States, viewed in its simplest form, addresses four questions. First, "does the Constitution permit federal, state, or local regulation of individual firearms ownership? Second, do such laws effectively and materially reduce violent crime? Third, what regulations are needed?" ^[3] And finally, is there a right of revolution.^[4]

Political scientists have identified eight significant policy relationships of gun politics in the United States^[5]:

1. Public opinion that is difficult to rally yet essential for action.
2. Intense, polarizing single-issue groups.
3. Parties that use the issue to attract voters.
4. Substantial state and local autonomy, and even policy creation.
5. Federal policymaking dominated by Congress, which rarely innovates.
6. Presidential involvement that is mostly symbolic.
7. Federal agencies with little authority, whose fate is determined by politics.
8. Courts that occasionally intervene to redefine the issue.

The history of enactment of gun regulation legislation is characterized by repetitive cycles of popular outrage, action and reaction usually in response to sensational shootings. The first modern gun regulation, the 1911 Sullivan Act in New York State, emerged in reaction to an attempt to murder New York City Mayor William Jay Gaynor. The shooting deaths of Senator Robert F. Kennedy and Martin Luther King, Jr. led to public outrage and political action with enactment of the federal Gun Control Act of 1968. Supporters of individual gun rights have resisted additional regulation efforts, often spearheaded by the National Rifle Association, as they believed existing laws had already addressed the concerns regarding illegal acts committed with guns. This outrage-action-reaction cyclical pattern reflects an essential core value conflict at the center of the gun politics issue. ^[6]

[edit] Gun culture

Main article: Gun culture

The right to own a gun and defend oneself is considered by some as central to the American identity. Support for this viewpoint varies widely, with broadest support in the rural Midwest and South, and the least support in urban and industrialized regions.^[7] This stems in part from the nation's frontier history, where guns were integral to America's westward expansion, enabling settlers to guard themselves from Native Americans, animals and foreign armies, and citizens assumed much responsibility for self-protection. The importance of guns also derives from the role of hunting in American culture, which remains popular as a sport in the country today.^[8]

In 1995, the BATF estimated that the number of firearms available in the US was 223 million.^[9] About 25% of the adults in the United States personally own a gun, the vast majority of them men.^[10] And, about half of the adult U.S. population, lived in households with guns.^[11] Less than half of gun owners say that the primary reason they own a gun is for self-protection against crime, reflecting a popularity of hunting and sport-shooting among gun owners. As hunting and sport-shooting tends to favor rural areas, naturally the bulk of gun owners generally live in rural areas and small towns.^[10] This attribute associates with low involvement in criminal violence, and therefore most guns are in the hands of people who are unlikely to misuse them and who tend to not have criminal records.^[10]

Guns are prominent in contemporary U.S. popular culture as well, appearing frequently in movies, television, music, books, and magazines. ^[12]

In a seminal article, America as a Gun Culture^[13], the noted historian Richard Hofstadter popularized the phrase gun culture to describe America's long affection for the gun, embracing and celebrating the association of guns and America's heritage. Regardless of one's political opinion about guns, the gun culture is an undeniable component of the gun debate.

[edit] Origins of gun culture

The origins of American gun culture trace back to the revolutionary war, hunting/sporting ethos and the militia/frontier ethos that draw from the country's early history.^[2]

The hunting/sporting ethos has come from a time when the United States was an agrarian, subsistence nation where hunting was an auxiliary source of food for some settlers, and also a deterrence to animal predators. A connection between shooting skills and survival among rural American males was a 'rite of passage' for entering manhood. Today, hunting survives as a central sentimental component of the gun culture regardless of the modern trend away from subsistence hunting and rural living.^[2]

The militia/frontier ethos derives from an early American dependence on wits and skill to protect themselves from hostile Native Americans and, rarely, from foreign armies. Survival depended upon everyone being capable of carrying a weapon. In the Eighteenth Century, there was neither budget nor manpower nor government desire to maintain a full time army, believing they were a threat to the rights of the civilian populace. Therefore the armed citizen soldier carried the responsibility. Service in militia, including providing your own ammunition and weapons, was mandatory for all adult males. Yet, as early as the 1790s, the mandatory universal militia duty gave way to voluntary militia units and a reliance on a regular army, with a decline of the importance of militia trend continuing throughout the Nineteenth Century.^[2]

Closely related to the militia tradition was the frontier tradition, with the westward movement closely associated with weaponry. In the Nineteenth Century firearms were closely associated with the westward expansion. Some historians believe that this perception that guns won the West springs from a mythology, and ignores the role of homesteaders, ranchers, miners, tradespeople and businessmen. In fact the so-called taming of the West was attributable to ranchers and farmers, not gun-slinging cowboys. Regardless, today, there remains a powerful central elevation of the gun associated with the Hunting/Sporting and Militia/Frontier ethos among the American Gun Culture.^[2] Though it has not been a necessary part of daily survival for a long time, generations of Americans have continued to embrace and glorify it as a living inheritance—a permanent ingredient of the nation's style and culture.^[14]

[edit] Guns in popular culture

The gun has long been a symbol of power and masculinity.^[15] In the United States it is also frequently tied to independence, respect, and patriotism.

In popular literature, frontier adventure was most famously told by James Fenimore Cooper, who is credited with creating archetype of the 18th-century frontiersman through such novels as "The Last of the Mohicans" (1826) and "The Deerslayer" (1840).^[16]

In the late 1800s, cowboy and Wild West imagery entered the collective imagination. The first American female superstar, Annie Oakley, was a sharpshooter who toured the country starting in 1885, performing in Buffalo Bill's Wild West show. The cowboy archetype of individualist hero was established largely by Owen Wister in stories and novels, most notably "The Virginian" (1902), following close on the heels of Theodore Roosevelt's "The Winning of the West" (1889-1895), a history of the early frontier.^{[17][18] [19]} Cowboys were also popularized in turn of the century cinema, notably through such early classics as "The Great Train Robbery" (1903) and "A California Hold Up" (1906)--the most commercially successful film of the pre-nickelodeon era.^[20]

Gangsters films began appearing as early as 1912, but became popular only with the advent of sound in film in the 1930s. The genre was boosted by the events of the prohibition era, such as bootlegging and the St. Valentine's Day Massacre of 1929, the existence of real-life gangsters (e.g., Al Capone) and the rise of contemporary organized crime and escalation of urban violence. These movies flaunted the archetypal exploits of "swaggering, cruel, wily, tough, and law-defying bootleggers and urban gangsters".^[21]

With the arrival of World War II, Hollywood produced many morale boosting movies, patriotic rallying cries that affirmed a sense of national purpose. The lone image of the cowboy was replaced in these combat films by stories that emphasized group efforts and the value of individual sacrifices for a larger cause, often featuring a group of men from diverse ethnic backgrounds who were thrown together, tested on the battlefield, and molded into a dedicated fighting unit.^[22]

Guns frequently accompanied famous heroes and villains in late 20th century American films, from the outlaws of Bonnie and Clyde (1967) and The Godfather (1972), to the fictitious law and order avengers like Dirty Harry (1971) and Robocop (1987). In the 1970s, films portrayed fictitious and exaggerated madmen ostensibly produced by the Vietnam war in films like Taxi Driver (1976) and Apocalypse Now (1979), while other films told stories of fictitious veterans who were supposedly victims of the war and in need of rehabilitation (Coming Home and The Deer Hunter, both 1978).^[23] Many action films continue to celebrate the gun toting hero in fantastical settings. At the same time, the negative role of the gun in fictionalized modern urban violence has been explored in films like Boyz N the Hood (1991) and Menace 2 Society (1993).

[edit] Political divides

See also Concealed carry in the United States

Traditionally, regional differences are greater than partisan ones on this issue. Coastal states such as New York, New Jersey and California support restrictions on guns, while other Western states (such as Montana and Wyoming) and Southern states (including Alabama and Florida) are mostly pro-gun. Illinois also supports restrictions on guns, while being mostly surrounded by states that do not. In the Southwestern state of Arizona, citizens are sometimes seen openly carrying holstered firearms in major cities such as Phoenix, the state even providing lockers for guns at government buildings.^[24] Other areas, including the Midwest, are mixed.^[25] Alaska and Vermont do not require any license to be allowed to carry concealed weapons in public places, but there are laws in these states prohibiting concealed weapons in certain places (e.g., in Alaska it is not permitted to carry a weapon, concealed or otherwise, into a bar or tavern).^[26] The spread of concealed carry laws in the pro-gun states since 1986 has led to the widespread legally-permitted carrying of concealed handguns by civilians in many parts of the United States.

While gun control is not strictly a partisan issue, there is more support for gun control in the Democratic Party than in the Republican Party.^[27]

[edit] Types of firearms

Political Scientist Earl Kruschke has described how, in the gun control debate, firearms have been viewed in only three general classes by those favoring gun control: 1) long guns 2) hand guns and 3) automatic and semi-automatic weapons. The first category has generally been associated with sporting and hunting uses; the second category, handguns, describe weapons which can be held with one hand such as pistols and revolvers; and the third general category has been most commonly associated in public political perception with military uses. Notably the AR-15 and AK-47 style firearms have contributed to this perception. However, only semi-automatic, non-military, versions of these rifles are available to the civilian public without special licensing.

In general terms, gun control supporters have paid little concern with the long guns used for sporting purpose as long guns are generally not viewed as associated with violent crime or suicide. Rather, gun control has focused more on limited controls for handguns because handguns are viewed as more of a problem due to the fact they are easily concealed. Handguns comprise approximately 25% of the weapons in America but are involved in 82% of all homicides.

Also, Kruschke describes incidents where public political perceptions have been shaped by a few high profile violent crimes associated with automatic and semi-automatic weapons, resulting in a relatively small percentage of the crime in absolute numbers, none-the-less have brought public focus on that type of weapon.^[28]

Kruschke states, however, regarding the fully-automatic firearms owned by private citizens in the United States, that "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."^[29]

Likewise, Kruschke states that automatic weapons are different than common semi-automatic hunting weapons, as the "most common examples [of automatic weapons] are machine guns, submachine guns, and certain types of military and police rifles". ^[30] This recognizes that there are semi-automatic household guns that are in widespread use like the .22 caliber Marlin Model 60 hunting rifle. Similarly, although Kruschke claims long guns are not being used in suicide, there are in fact instances of long guns that are used for suicides.^[31] Although Krushke describes that semi-automatic and automatic weapons are associated with military uses, he acknowledges^[30] that the US Government distinguishes^[32] semi-automatic guns in a different category from fully-automatic guns.

[edit] History of gun politics

[edit] Revolutionary War

Minutemen were members of teams of select men from the American colonial militia during the American Revolutionary War who vowed to be ready for battle against the British within one minute of receiving notice. Minuteman Paul Revere spread the news that "the regulars are coming", but was captured before completing his mission when the British marched towards the arsenal in Lexington and Concord to collect the patriots' weapons.^[33] The right to firearms was thus an issue in America from the very beginning.

[edit] Jacksonian era

[edit] Antebellum era

One of the early political battles over the right to firearms involved the rights of slaves to join militia and to carry firearms in the United States, resulting in political battles, and ultimately civil war, in the aftermath of the 1856 Supreme Court decision Dred Scott v. Sandford which denied Negroes the full rights of citizenship:^[34] "... (Mr. Scott's petition) would give to persons of the negro race, the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.". ^[35].

Politically, this case strengthened the opposition to slavery in the North, divided the Democratic Party on sectional lines, encouraged secessionist elements among Southern supporters of slavery to make even bolder demands, and strengthened the Republican Party, political forces with effect upon the Civil War.

[edit] Reconstruction era

[edit] Early 20th century

A famous case where fully-automatic weapons being used in crime that has received widespread publicity in the United States was during the Saint Valentine's Day massacre during the winter of 1929; this Prohibition-era gangster sub-machine gun mass murder during Prohibition lead directly to the National Firearms Act of 1934, which was passed after Prohibition had ended. Since 1934, fully-automatic weapons have been heavily regulated by the Bureau of Alcohol, Tobacco and Firearms (ATF), but are available to citizens in most of the states in the United States upon paying a $200 transfer tax and registration. No other widely-publicized crimes involving fully-automatic weapons in the United States have since occurred.^[36]

[edit] Late 20th century

In the latter half of the 20th Century, groups such as the National Rifle Association (NRA) and the Gun Owners of America (GOA) organized voters and campaign volunteers to focus citizen communication and interest when gun control legislation was under consideration, both at federal and at state levels.

The United States had the weakest gun control laws in the developed world due to the strength of the gun lobby, particularly the NRA.^[37] The NRA historically supported gun laws intended to prevent criminals from obtaining firearms, while opposing new restrictions that affected law-abiding citizens.

The GOA grew out of dissatisfaction with the NRA, and historically rejected any gun laws that infringed the rights of law-abiding citizens, putting it at odds with the NRA on many legislative issues.

Besides the GOA, other national gun rights groups often took a stronger stance than the NRA. These groups criticize the NRA's history of support for some gun control legislation, such as the Gun Control Act of 1968, the ban on armor-piercing projectiles, point-of-purchase background checks (NICS). Some of these groups are The Second Amendment Sisters, Second Amendment Foundation, and Jews for the Preservation of Firearms Ownership. These groups, like the GOA, believe any compromise leads to incrementally greater restrictions.^[38][39]

Handgun Control Inc. (HCI), was founded in 1974 by businessman Pete Shields, formed a partnership with the National Coalition to Ban Handguns (NCBH), also founded in 1974. Soon parting ways, the NCBH was renamed the Coalition to Stop Gun Violence in 1990, and while smaller than HCI, generally took a tougher stand on gun regulation than HCI.^[5]

HCI saw an increase of interest and fund raising in the wake of the 1980 murder of John Lennon. By 1981 membership exceeded 100,000. Measured in dollars contributed to congressional campaigns, HCI contributed $75,000. Following the 1981 assassination attempt on President Reagan, and the resultant injury of James Brady, Sarah Brady joined the board of HCI in 1985. HCI was renamed in 2001 to Brady Campaign to Prevent Gun Violence.^[40]

In the 1990's, gun politics took a turn to the right in response to two high profile ATF incidents, Waco and Ruby Ridge, that led to mobilization of modern militia groups.^[41] These incidents combined with the passage of the Brady Act in 1993 and the Assault Weapons Ban a year later increased the fears of those who felt the Federal Government would confiscate their firearms.^[42][5]The Militia Movement expanded throughout the 1990s but subsided when the Assault Weapons Ban expired in September 2004.^{[citation needed]}

[edit] Early 21st century

The NRA supported weakened requirements for background checks for firearm purchases and opposed bans on hand guns in Washington D.C. and San Francisco, while also supporting the 2007 NICS Improvement Amendments Act (H.R. 2640).

The GOA especially took issue with the NRA over the 2007 Veteran's Disarmament Act.^[43]

Besides the GOA, other national gun rights groups continue to take a stronger stance than the NRA. These groups criticize the NRA's history of support for some gun control legislation, such as the Veteran's Disarmament Act. Groups such as The Second Amendment Sisters, Second Amendment Foundation, and Jews for the Preservation of Firearms Ownership continue much as they did in the late 20th Century, but new groups have also arisen, such as the Students for Concealed Carry on Campus, which grew largely out of perceived safety-issues with so-called 'Gun-free' killing zones that are legislatively-mandated at many schools, amidst a response to widely-publicized school shootings.

[edit] Political lobbying

This article is part of the Lobbying in the United States series.

Political action committee

527 group

Campaign finance

Campaign finance reform

Major industry lobbies

Energy

Agribusiness

Health

Organized labor

Software

Transportation

Insurance

Major single-issue lobbies

Pro-life / pro-choice (abortion)

Environment

Federal leadership

Foreign and defense policy

Gun rights / gun control

Israel

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According to The Center for Public Integrity, 145 groups are registered as making gun-related filings to lobby Congress. The largest being the National Rifle Association, spending about $1.5 million per year, predominantly through two lobbying firms, the WPP Group and The Federalist Group.^[44] Ranked by total filings, pro-gun lobbying exceeded gun-control lobbying by the ratio of approximately 3:1.^[45]

Measured in dollars, in 2007, gun rights political spending on lobbying totaled $1,959,407 versus gun control spending of $60,800.^[46]

[edit] Notable individuals

The field of political research regarding firearms suffers from the same contention as the issue of the effect of firearm ownership on crime levels. Some influential individuals in the debate include (in alphabetical order):

• James Brady, who was shot and disabled in an assassination attempt on President Ronald Reagan while working as his assistant. He and his wife Sarah Brady later became founders of the Brady Center to Prevent Gun Violence.
• Arthur Kellermann, who studied firearm injury prevention after assisting many gun crime victims as an emergency room doctor. He has published studies examining the relationship between gun injury and the availability of firearms.
• Gary Kleck, a leading academic expert in the connection between gun control laws and violence.
• John Lott, author of More Guns, Less Crime and The Bias Against Guns
• David Hemenway, author of Private Guns, Public Health
• Donna Dees-Thomases Founder of the Million Mom March^[47]
• Suzanna Hupp, survivor of the Luby's massacre and advocate of the right to carry a concealed weapon.

[edit] Political arguments

Disagreements range from the practical — does gun ownership cause or prevent crime? — to the constitutional — how should the Second Amendment be interpreted? — to the ethical — what should the balance be between an individual's right of self-defense through gun ownership and the People's interest in maintaining public safety?

Political arguments about gun rights fall into two basic categories, first, does the government have the right and authority to regulate guns, and second, if it does, is it effective public policy to regulate guns.^[48]

[edit] Rights-based arguments

A fundamental type of political argument about gun control is based on the premise that the government does or does not have the right and/or authority to regulate guns.

[edit] The Second Amendment argument

Disagreement about the Second Amendment to the United States Constitution is a touchstone of modern political debate about guns in America. The position that the Second Amendment codifies an individual right to own guns is a common argument made by gun right proponents; each of the Ten Amendments comprising the Bill of Rights refer to individual–not collective–rights, and place explicit limitations upon the power of the federal government.^{[49][50][51][52]} A study of the National Rifle Association publication American Hunter found thirty-four references to this claim in a single issue of the magazine.^[53]

A key issue involves disagreement over the meaning of the Second Amendment, which is interpreted by supporters of gun rights as an individual right, and by advocates of gun control as referring to a right of the people to arm themselves only when bonded together for communal defense. ^[3] At present, two of the thirteen federal circuits have adopted an individual rights view. A Second Amendment case is currently under review by the Supreme Court (District of Columbia v. Heller), having been granted certiorari, to resolve this jurisdictional split.^[54]

The extensive emphasis on the meaning of the Second Amendment in modern political activity is reflected in the resultant public perception.^[53] A poll conducted by the National Rifle Association found that 89% of Americans believe they have a right to own a gun.^[55]

The "individual rights" view of the Second Amendment has been, and is, endorsed by many commentators, among them attorney and former senator Fred Thompson. In a recent article, Senator Thompson noted:

From the enactment of the Bill of Rights in 1791 until the 20th century, no one seriously argued that the Second Amendment dealt with anything but an individual right — along with all other nine original amendments. [Don] Kates writes that not one court or commentator denied it was a right of individual gun owners until the last century. Judges and commentators in the 18th and 19th century routinely described the Second Amendment as a right of individuals. And they expressly compared it to the other rights such as speech, religion, and jury trial.^[56]

The claim that the Second Amendment does not grant or protects a constitutionally based individual right to guns is a common theme of gun rights opponents. Robert Spitzer^[57] summarizes his opinion of United States Supreme Court precedence on this question:

"The Court in this case (U.S. v. Cruikshank, a pre-incorporation Supreme Court case) established two principles that it (and most other courts) have consistently upheld: that the Second Amendment does not simply afford any individual a right to bear arms free from governmental control; and that the Second Amendment is not "incorporated," meaning that it pertains only to federal power, not state power..."^[58]

According to Spitzer, the Second Amendment does not in any way restrict the States from passing legislation which regulates firearms. The vast majority of firearm laws in the United States are not federal, but local codes, and are not constrained by the Second Amendment.^[59]

Under the incorporation doctrine, which causes the federal Bill of Rights to be applied to the state governments, the second amendment has never been incorporated into the fourteenth amendment's liberty clause by any federal court^[60].

[edit] State constitutions

See also Gun laws in the United States (by state)

Each of the fifty states has its own constitution and laws regarding guns. Most of the states' constitutions provide for some form of state-level right to keep and bear arms with only seven states remaining silent on the issue.^a[›] Many states' constitutional provisions for firearm rights are at least similar to, if not directly derived from, the Second Amendment of the United States Constitution. Hawaii's constitution simply copies the text of the Second Amendment verbatim,^[61] while North Carolina, and South Carolina begin with the same but continue with an injunction against maintaining standing armies.^[62][63] Alaska also begins with the full text of the Second Amendment, but adds that the right, "shall not be denied or infringed by the State or a political subdivision of the State".^[64] Rhode Island, on the other hand, subtracts the first half of the Second Amendment leaving only, "[t]he right of the people to keep and bear arms shall not be infringed".^[65]

The majority of the remaining states' constitutions differ from the text of the United States Constitution primarily in their clarification of exaclty to whom the right belongs or by the inclusion of additional, specific protections or restrictions. Seventeen states refer to the right to keep and bear arms as being an individual right with Utah and Alaska referring to it explicitly as "[t]he individual right to keep and bear arms",^[66][64] while the other fifteen refer to the right as belonging to "every citizen",^[67] "all individuals",^[68] "all persons",^[69] or another, very similar phrase^b[›]. In contrast are four states which make no mention whatever of an individual right or of defense of one's self as a valid basis for the right to arms. Arkansas, Massachusetts, and Tennessee all state that the right is "for the common defence",^[70][71][72] while Virginia's constitution explicitly indicates that the right is derived from the need for a militia to defend the state.^[73]

Most state constitutions go on to ennumerate one or more appropriate reasons for the keeping of arms. Twenty-four states include self-defence as a valid, protected use of arms;^c[›] twenty-eight cite defense of the state as a proper purpose.^d[›] Ten states extend the right to defence of home and/or property,^e[›] five include the defence of family,^f[›] and six add hunting and recreation.^g[›] Idaho is uniquely specific in its provision that "[n]o law shall impose licensure, registration, or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony".^[74] Fifteen state constitutions include specific restrictions on the right to keep and bear arms. Florida's constitution calls for a three day waiting period for all modern cartridge handgun purchases, with exceptions for handgun purchases by those holding a CCW license, or for anyone who purchases a blackpowder handgun.^[75] Illinois prefaces the right by indicating that it is "[s]ubject...to the police power".^[76] Florida and the remaining thirteen states with specific restrictions all carry a provision to the effect that the state legislature may enact laws regulating the carrying, concealing, and/or wearing of arms.^h[›]

[edit] Right of self-defense

While a range of views may be found among proponents of gun rights, most believe that the Second Amendment protects the right to own guns for individual self defense, hunting, and target shooting. Gun rights supporters argue that the phrase "the people" applies to all individuals rather than an organized collective, and point out that the phrase "the people" means the same individuals in the 1st, 2nd, 4th, 9th, and 10th Amendments.^[77][78][79] They also cite the fact that the Second Amendment resides in the Bill of Rights and argue that the Bill of Rights, by its very nature, defines individual rights of the citizen.^[80][81]

[edit] Security against tyranny and invasion

Many proponents of gun rights also read the Second Amendment to state that because of the need of a formal military, the people have a right to "keep and bear arms" as a protection from the government. The cultural basis for gun ownership traces to the American revolution, where colonists owned and used muskets equivalent to those of the British soldiers to gain independence. Thomas Jefferson also stated that the right to bear arms is necessary for the citizens to protect themselves from the "tyranny in government"^[82]

A position taken by some personal gun rights advocates is that an armed citizenry is the population's last line of defense against tyranny by their own government, as they believe was one of the main intents of the Second Amendment. This belief was also held by some of the authors of the Constitution, though a right of rebellion was not explicitly included in the Constitution, and instead the Constitution was designed to ensure a government deriving its power from the consent of the governed.

The Declaration of Independence itself says when discussing the abusive British rule: "...Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it..."

Abraham Lincoln, echoing the Declaration in his first inaugural address, said:

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it."

Thomas Jefferson wrote in defense of the Shays' Rebellion in a letter to William Stevens Smith (November 13, 1787), quoted in Padover's Jefferson On Democracy,

"What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."

Yet, the legal scholar Roscoe Pound has said:

"(a) legal right of a citizen to wage war on the government is something that cannot be admitted. ... In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights."^[83]

Opponents of this right of revolution theory also argue that the intent of the Second Amendment was the need to avoid a standing army by ensuring the viability of people's militias, and that the concept of rebellious private citizens or rogue militias as a check on governmental tyranny was clearly not part of the Second Amendment. As historian Don Higginbotham notes, the well-regulated militia protected by the Second Amendment was more likely to put down rebellions than participate in them.^[84]In his book "Armed People Victorious," Larry Pratt recounts how countries as dissimilar as Guatemala and the Philippines preserved their freedom against communist insurgency by arming the people and forming rural militias in the 1980s.^[85]

Critics of the 'security against tyranny' argument argue also that replacing elected officials by voting is sufficient to keep the government in check, although there are numerous examples in history of elected officials assuming absolute power, with little regard to laws. Personal gun right advocates put forward the Battle of Athens in August 2, 1946 as an example of citizens in desperate circumstances using firearms where all other democratic options have failed. Pro-gun groups argue that the only way to enforce democracy is through having the means of resistance^[86][87][88] .

Then Sen. John F. Kennedy recognized the intent of the founding fathers "fears of governmental tyranny" and "security of the nation" in his statement Know Your Lawmakers, Guns, April 1960, p. 4 (1960),

"By calling attention to 'a well regulated militia,' the 'security' of the nation, and the right of each citizen 'to keep and bear arms,' our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important."^[89]

Pro-gun rights groups rarely believe in the plausibility of an "instant" rebellion's success through traditional warfare. Those who believe that arms allow for successful rebellions against tyranny hold that Guerrilla Warfare is the method in which liberty could once again (or even for the first time) be achieved. The right of free people to form militias to protect life, liberty, and property has been shown historically to be essential for the preservation of freedom.^[90]

Few people in the past had debated the applicability of the Second Amendment in conjunction with the Ninth and Tenth Amendments. More recently, scholars had begun to recognize the importance of these Amendments in conjunction with the Second Amendment in preserving individual freedom. Clearly, the founding fathers recognized that some rights were so clear and obvious that they needed no enumeration. In the end, the Bill of Rights with these Amendments was a necessary addition to the federal Constitution for its assure ratification by the states.

[edit] Public policy arguments

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A second class of political arguments is founded on the premise that even if the government has the right and authority to regulate guns, to do so may or may not be sound public policy. ^[91]

[edit] Importance of a militia

Opponents of a restrictive interpretation of the Second Amendment point out that at the time of the second amendment in the late 18th century, the word "militia" meant all able-bodied male citizens between the ages of 17 and 45. Even today, the United States Code states that the militia is all male citizens and resident aliens at least 17 up to 45 with or without military service experience, and including additionally those under 64 having former military service experience, as well as including female citizens who are members of the National Guard. ^[92] Some people argue about even the number of commas in the amendment.^[93] Also, there is disagreement about the difference between organized militias and unorganized militias, and their relationship to the Second Amendment, the general question being, "Does the right pertain to only organized, well-regulated militias or all citizens?"

There is a wide range of views regarding the Second Amendment. Some gun rights advocates argue that the right to arms for self-preservation pre-dates the U.S. Constitution, is one of the unenumerated rights codified by the Tenth Amendment, and is protected by the Second Amendment; such gun rights advocates argue that the Second Amendment does not grant the right to arms, but simply protects the right to arms. Some gun control advocates argue that the Second Amendment does not cover individual gun ownership; others argue that the right to own firearms rests on other grounds which render it subject to the full force of the state's police powers, while others argue for outright repeal of the Amendment.^[94]A wide range of views exists regarding the Second Amendment among gun control supporters, but most all agree that the militia refer to the people and that the Second Amendment refer to the individual right to keep and bear arm, and most legal scholars are coming to agree with that view as we enter the 21st Century.^[95]

[edit] Firearm deaths

Those concerned about high levels of gun violence in the United States in comparison to other developed countries^[96][97] look to restrictions on gun ownership as a way to stem the violence. Those supportive of long-standing rights to keep and bear arms point to the Second Amendment of the Constitution, which some interpret as specifically preventing infringement of the "right of the people to keep and bear arms", independent of serving in a militia, as the means by which to stem the violence.^[98][99]

Within the gun politics debate, gun control advocates and gun rights advocates disagree on more practical questions as well. There is an ongoing debate over the role that guns play in crime. Gun-rights groups say that a well-armed citizenry prevents crime and that making civilian ownership of firearms illegal would increase the crime rate by making law-abiding citizens vulnerable to those who choose to disregard the law,^[100][101] while gun control organizations say that increased gun ownership leads to higher levels of crime, suicide, and other negative outcomes.

[edit] Relationships between crime, violence, and gun ownership

There is an open debate regarding the relationship between gun control, and violence and other crimes. The numbers of lives saved or lost by gun ownership is debated by criminologists. Research difficulties include the difficulty of accounting accurately for confrontations in which no shots are fired, and jurisdictional differences in the definition of "crime".

One author, frequent talk show guest, columnist and think tank founder John Longenecker, author of The Case For Nationwide Concealed Carry Of Handguns points to Original Intent as enduring for the interests of the nation. Longenecker shows that the Founding Fathers defeated abuse of due process when defeating the Crown Of England, and that this lives on today or the nation perishes. Longenecker adds that the Founders did not write the Constitution for citizens as much as to impose limits on government - a subject they knew only too well. Regarding the Second Amendment, the Founders did not fear nor imagine weapons of the future, but foresaw and forbade abuses of due process in the future, and wrote that the Citizen is the supreme authority to protect the new nation against abuses for all time. The Second Amendment embodies this by backing that ultimate citizen authority with force. Longenecker emphasizes that Crime is often used as an excuse to disarm that ultimate authority - the people - for the unhampered growth of cottage industries and other anti-crime policy. Finally, Longenecker shows how claims of no change in right-to-carry states are untrue: For the FBI's report of 10,177 gunshot deaths in 2006, there were 2.5 million crimes de-escalated by armed citizens, who believed they had sufficient control of the situation that they did not have to fire their weapon. "Clearly," Longenecker says, "What the people don't see tells the story 2.5 million times a year. Armed citizens play their role in crime control and they do it in due process."

Some writers, such as John Lott, author of More Guns, Less Crime, say they have discovered a positive correlation between gun control legislation and crimes in which criminals victimize law-abiding citizens. Lott asserts that criminals ignore gun control laws and are effectively deterred only by armed intended victims just as higher penalties deter crime. His work involved comparison and analysis from data collected from all the counties in the United States.^[102] Lott's study has been criticized for not adequately controlling for other factors, including other state laws also enacted, such as Florida's laws requiring background checks and waiting period for handgun buyers.^[103] with similar findings by Jens Ludwig.^[104] Since concealed-carry permits are only given to adults, John J. Donohue suggests that analysis should focus on the relationship with adult and not juvenile gun incident rates.^[105] He finds a small, positive effect of concealed-carry laws on adult homicide rates, but states the effect is not statistically significant.^[105] NAS suggests that new analytical approaches and datasets at the county or local level are needed to evaluate adequately the impact of right-to-carry laws.^[106]

Another researcher, Dr. Gary Kleck, a criminologist at Florida State University, estimated that approximately 2.5 million people used their gun in self-defense or to prevent crime each year, often by merely displaying a weapon. The incidents that Kleck studied generally did not involve the firing of the gun and he estimates that as many as 1.9 million of those instances involved a handgun.^[107] Kleck's research has been challenged by scholars such as David Hemenway who argue that these estimates of crimes prevented by gun ownership are too high.^[60] Indeed, Hemenway argues, according to Kleck's study (which is based on gun owners' self-reporting), hundreds of thousands of murder attempts are thwarted every year by gun owners, which would mean that the vast majority of murder attempts are in fact prevented by self-defense gun use.^[60] The National Rifle Association regularly reprints locally-published stories of ordinary citizens whose lives were saved by their guns.

A study supported by the National Rifle Association found that homicide rates as a whole, especially homicides as a result of firearms use, are not always significantly lower in many other developed countries. This is apparent in the UK and Japan, which have very strict gun control, while Israel, Canada, and Switzerland at the same time have low homicide rates and high rates of gun distribution. Although Dr Kleck has stated, "...cross-national comparisons do not provide a sound basis for assessing the impact of gun ownership levels on crime rates." ^[108]

In a New England Journal of Medicine article, Kellermann found that people who keep a gun at home increase their risk of homicide.^[109] Florida State University professor Gary Kleck disagrees with the journal authors' interpretation of the evidence and he argues that there is no evidence that the guns involved in the home homicides studied by Kellermann, et al. were kept in the victim's home.^[107] Similarly, Dave Kopel, writing in National Review, criticized Kellermann's study.^[110]Researchers John Lott, Gary Kleck and many others still dispute Kellermann's work.^{[111] [112][113][114]} Kleck agrees only with Kellermann's finding that contrary to widespread perception, the overall frequency of homicide in the home by an invading stranger is much less than that of domestic violence. Kellerman's work has also being severely criticized because he ignores factors such as guns being used to protect property, save lives, and deter crime without killing the criminal—which, Kleck and others argue, accounts for the large majority of defensive gun uses.^{[115][116][117]} Kellermann responded to similar criticisms of the data behind his study in a letter to the New England Journal of Medicine^[118] Finally, another argument cited by academics researching gun violence points to the positive correlation between guns in the home and an already violent neighborhood. These points assert that Professor Kleck's causal story is in fact backwards and that violent neighborhoods cause homeowners to purchase guns and it is the neighborhood that determines the probability of homicide, not the presence of a gun. Lott's results suggest that allowing law-abiding citizens to carry concealed firearms, deters crime because potential criminals do not know who may or may not be carrying a firearm. The possibility of getting shot by an armed victim is a substantial deterrent to crime and prevents not only petty crime but physical confrontation as well from criminals. Lott's data comes from the FBI's massive crime statistics from all 3,054 US counties.^[119] Other scholars, such as Gary Kleck, support Lott's findings but take a slightly different tack; while criticizing Lott's theories as (paradoxically) overemphasizing the threat to the average American from armed crime, and therefore the need for armed defense, Kleck's work speaks towards similar support for firearm rights by showing that the number of Americans who report incidents where their guns averted a threat vastly outnumber those who report being the victim of a firearm-related crime.^[120] Others have pointed out that the beneficial effects of firearms, not only in self-protection, deterring crime, and protecting property but also in preserving freedom, have not been properly studied by public health researchers.^[100][101]

In his book Private Guns, Public Health, David Hemenway makes the argument in favor of gun control and he provides evidence for the more guns, more gun violence and suicide hypothesis. Rather than compare America to countries with radically different cultures and historical experiences, he focuses on Canada, New Zealand and Australia and concludes that the case for gun control is a strong one based on the relationship he finds between lower crime rates and gun control.^[121] Other information from countries such as South Africa, Russia, and several other countries which forbid almost all individual firearms and have low rates of gun ownership, have much higher murder rates than the US, usually committed with simple knives, explosives, or improvised blunt-force weapons.^[122]

Firearms are also the most common method of suicide, accounting for 53.7% of all suicides committed in the United States in 2003^[123].

A 2003 CDC study determined "The Task Force found insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes."^[124] They go on to state "(Note that insufficient evidence to determine effectiveness should not be interpreted as evidence of ineffectiveness.)" after reviewing 54 studies and over one hundred years of history.

For a more detailed discussion of the historical and current gun violence issues in the United States, see Gun violence in the United States.

[edit] Security against foreign invasion

There is some historical evidence that an armed populace is a strong deterrent against a foreign invasion. Personal gun rights advocates frequently cite tyrants who feared the idea of invading countries where the citizenry was heavily armed or when these tyrants needed to disarm their own populace to be effective. For example, Adolf Hitler said (as quoted in his Tischgespräche im Führerhauptquartier, April 11, 1942): "The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so." Once the Nazis had taken and consolidated their power, they then proceeded to implement gun control laws to disarm the population and wipe out the opposition. Genocide of disarmed Jews, gypsies, and other undesirables followed.^{[125] [126]} The Battles of Lexington and Concord, sometimes known as the Shot heard 'round the world, in the 1770s, were started in part because General Gage sought to carry out an order by the British government to disarm the populace^[127].

Historical evidence cited by these supporters of gun rights includes the fact that during the Pacific War, Japan rejected the idea of invading the West Coast of the United States due to the prevalence of armed civilians. As noted after the war by one Japanese Admiral, "We knew that your country actually had state championships for private citizens shooting military rifles. We were not fools to set foot in such quicksand."^[128]

The Afghan Mujahideen countered well-equipped Soviet Armed Forces with antiquated bolt action rifles. As noted by Major Keith J. Stalder, USMC, in 1985, "... the Lee Enfield-armed Afghans can often hit at 800 meters or longer range while the Kalashnikov-armed motorized riflemen are ineffective beyond 300 meters..".^[129] As Kenneth W. Royce has phrased it, 60,000 dead Soviets cannot all be wrong. Ultimately, the Soviets left in defeat, losing against mostly WW I and WW II bolt action rifles, while they themselves were armed with the latest weapons. Of course, the Mujahideen did have significant support from the West with 'Stinger' Anti-Aircraft missiles, but their bolt-action infantry weapons were still essentially indigenous.

[edit] The courts and the law

[edit] Supreme Court decisions

Since the late Nineteenth Century, with three key cases from the pre-incorporation era, the Supreme Court consistently ruled that the Second Amendment (and the Bill of Rights) restricts only the federal Congress, and not the States, in the regulation of guns.^[130] Some legal scholars hold that since the Supreme Court has declined ample opportunity to review these decisions in the post-incorporation era, these decisions stand as "good law". ^[131] Challenges to gun regulations (including efforts to incorporate the Second Amendment) have been uniformly turned aside, concluding that the Supreme Court considers this matter settled for the time being.^[132] Other scholars predict that the Court's incorporation of other rights suggests that they may incorporate the Second, should a suitable case come before them. ^[133]

"Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles. To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; "Saturday night specials" and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles." — Ex-Chief Justice Warren Burger, 1990. ^[134]

There has been only one modern Supreme Court case that dealt directly with the Second Amendment, United States v. Miller.^[135] In that case the Supreme Court did not address the incorporation issue, but the case instead hinged on whether a sawed-off shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia." ^[136] In quashing the indictment against Miller, the U.S. District Court for the Western District of Arkansas stated that the National Firearms Act of 1934, "offend[ed] the inhibition of the Second Amendment to the Constitution." The federal government then appealed directly to the US Supreme Court. On appeal the federal government did not object to Miller's release since he had died by then, seeking only to have the trial judge's ruling on the unconstitutionality of the federal law overturned. Under these circumstances, neither Miller nor his attorney appeared before the US Supreme Court to argue the case; the Court only heard argument from the federal prosecutor. In its ruling, the Supreme Court overturned the trial court and upheld the law. For a more complete reading of this case, see Reynolds, Glenn Harlan and Denning, Brannon P., "Telling Miller's Tale" . 65 Law & Contemp. Probs. 113 (Spring 2002).^[137]

[edit] Circuit court

A recent circuit court decision, Parker v. District of Columbia, overturned a federal gun control law on constitutional grounds ruling contrary to Supreme Court precedent, and most other federal courts of appeal, according to Duke Professor Erwin Chemerinsky.^[138] According to the majority:

"In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights."

[edit] Gun laws

See also: Gun laws in the United States (by state) and Gun law in the United States

Gun control laws and regulations exist at all levels of government, with the vast majority being local codes which vary between jurisdictions. The NRA reports 20,000 gun laws nationwide.^[139] A study published in the American Journal of Preventive Medicine notes only 300 federal and state laws regarding the manufacture, design, sale, purchase, or possession of guns.^[140]

At the federal level, fully automatic weapons and short barrel shotguns have been taxed and mandated to be registered since 1934 with the National Firearms Act. The Gun Control Act of 1968 adds prohibition of mail-order sales, prohibits transfers to minors, and outlaws civilian ownership of machine guns manufactured after May 19, 1986. The 1968 Act requires that guns carry serial numbers and implemented a tracking system to determine the purchaser of a gun whose make, model, and serial number are known. It also prohibited gun ownership by convicted felons and certain other individuals. The Act was updated in the 1990s, mainly to add a mechanism for the criminal history of gun purchasers to be checked at the point of sale, and in 1996 with the Domestic Violence Offender Gun Ban to prohibit ownership and use of guns by individuals convicted of misdemeanor domestic violence.

[edit] See also

• ACLU President Strossen on gun rights
• Carrying concealed weapon
• Civilian Marksmanship Program
• Coalition to Stop Gun Violence
• Firearm case law in the United States
• Gun (Firearm) laws in the United States (by state)
• Gun law in the United States
• Gun Owners of America (GOA)
• Gun politics
• Gun violence in the United States
• Gun violence
• Jews for the Preservation of Firearms Ownership (JPFO)
• Joyce Foundation
• Mayors Against Illegal Guns Coalition
• National Rifle Association of America (NRA)
• Pink Pistols
• Second Amendment Foundation (SAF)
• Second Amendment Sisters
• Second Amendment to the United States Constitution
• Students for Concealed Carry on Campus

[edit] Notes

[edit] References

[edit] External links

[edit] Pro gun regulation links

• The Brady Campaign to Prevent Gun Violence
• Violence Policy Center
• Legal Community Against Violence

[edit] Pro gun rights links

• Gun Owners of America
• National Rifle Association of America
• The Second Amendment Foundation