This article is written by Dnyaneshwari Patil from RTMNU Babasaheb Ambedkar College of Law, Nagpur. In this article, she discusses the impact of the second amendment and its re-interpretation by the court on gun control issues in America, how an organisation impacted the court’s decision, and the need for reform in gun policy in the USA.
The Second Amendment to the Constitution of the United States has always been a debated issue in the country. The primary purpose of the second amendment was to protect the citizens from police or military rule. The military and police have access to firearms giving them an upper hand in ruling the nation with ease. Hence, the second amendment was created to prevent such happening. Since its inception, the debate around possession, purchase, and transportation of firearms has not been resolved by the court; the question of what right the second amendment protects is still vague. According to the individual right theory, the language of the amendment protects the individual from the restrictive and prohibitory legislative bodies regarding possession of firearms. Another theory is collective rights theory asserts that the individual does not have the right to possess firearms and the legislative bodies have the authority to control the firearms without compromising the constitutional right.
The second amendment in the Supreme Court and circuit courts of appeal
Initially, when the American Constitution was ratified, most of the provision was to specify the extent and limit of federal power. This was known as the “incorporation doctrine.” However, after the 14th Amendment was ratified, it incorporated limits to the state authority and not just the federal authority. In the second amendment, it was limited only to the federal authority until the McDonald decision.
The Supreme Court (SC) in the United States v. Miller (1939) case upheld the regulation which controlled the interstate selling of short barrel shotguns. It held that “keeping the sawed-off shotgun has no reasonable relationship to maintaining the efficiency or preservation of the militia.” Thus, in this judgment, the Supreme Court, based on collective rights theory, focused on the phrase “well-regulated militia”.
After 70 years of this judgment, the SC reinterpreted the second amendment in District of Columbia v. Heller (2008). In this case, the District of Columbia banned the private possession of handguns. When appealed in the SC, it was held that the phrase in the second amendment “keep and bear arms” was not restricted to the only well-regulated militia of the organised state and federal militia but also extended to the “abled-body men” who were available for conscription. Thus subsequently, they concluded that the impugned amendment adhered to individuals also, and the individuals who are not connected to the militia have the right to possess firearms for traditionally lawful purposes such as self-defence. Hence, the SC came down to the Individual right theory.
Soon after the Heller case, in the McDonald v. City of Chicago, the court considered whether the second amendment could be incorporated as a limit to the state authority via the 14 amendment’s due process of law clause. It also examined “whether the right to possess firearms is fundamental to our ordered scheme of liberty or it is deeply rooted in this nation’s history and tradition.”
The plurality of the court found that the right to possess firearms was deeply rooted in the nation’s history for self-protection before and after the ratification of the 14th amendment. Thus, the court held that the right to keep and possess firearms are protected under clause 1 of the 14th amendment, which protects the privileges or immunities of the citizen from the state acts and not by the due process clause.
Recently the Supreme Court in New York State Rifle & Pistol Association Inc. v. Corlett (2020) will hear on the second amendment of the Constitution. This case involves the New York handgun licensing law, which requires the individual to show a “proper cause” for carrying a gun in a public place. Thus, the judiciary is going to decide whether the state denial to the petitioner to carry a gun in a public place is a violation of the second amendment or not.
The NRA and gun advocacy
Heller’s decision sprang from the concerted advocacy by the National Rifle Association (NRA) supporters for the right to use firearms. In the 20th century, the theory of collective rights was being followed by regulating and imposing restrictions on machine guns, sawed-off shotguns, and silencers through the statute the National Firearms Act, 1934 and the Gun Control Act, 1938. The NRA defied the broad meaning of the rights, thrived for individual rights, and pushed the idea in the Court and the public discourse. Between the 1920s and 1960s, it was known for educating and for safety programs; however, it went behind and tried influencing government and promoted from the base the notion of individual rights for possessing firearms, using the wildcard of public safety and national defence.
In 1968, congress passed the Gun Control Act, even after the resistance from the NRA. It angered the NRA, and the movement accelerated when one of the NRA members was killed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
The NRA notion gained speed slowly initially, but their endeavour proved far more successful due to political changes in the following decades. To make people open to the idea of individual rights, they started to focus on what the constitution meant to its drafters. A small group of lawyers started publishing studies describing how individual’s possession of firearms was the intention of the second amendment. Through the narratives of history, they tried to prove to the general public that the second amendment was based on individual right theory, and this was the standard interpretation of gun history in America. Thus through NRA’s magazines, museums, scholarships, sponsored films, they tried “Gunspaning” the general public, including law professors and judges.
The major movement in the fight came when Justice Antonin Scalia referred from the book, To Keep and Bear Arms: The Origins of an Anglo-American Right by Joyce Lee Malcolm when he wrote for the majority in Heller. In that book, it argued about the origin of the right, traced back during the Bill of Rights, 1689.
Scholars found faults in Scalia’s opinion as they believe that it is based on archival evidence, and the historian had not found any record in English common law about the individual’s right of possession of guns. Hence, scholars believe that the NRA had monopolized the history of guns, and the court should not rely on distorted versions of history and allow congress to make reasonable regulations to restrict and control the use of firearms.
The NRA is formed by 4 million gun enthusiasts and hunters, and manufacturers. The gun industry supports the NRA as they earn billions of dollars annually, and thus together, they form a powerful opposition to the legislative.
Role of gun control laws
According to Gun Control Act 1968 (GCA), the minimum age to purchase shotguns, rifles, and ammunition is 18 years. Other firearms, for example – handguns, could be sold to people who are at least the age of 21 and above. People convicted of offences having a prison sentence of one year or misdemeanours having sentences of more than two years or considered dangerous to society cannot purchase firearms. If a person is found, within one year, unlawful possession of a controlled substance can also not purchase a gun according to federal law. Others include people who have renounced their citizenship, unauthorized migrants, tourists, against whom a restraining order from the court had been issued in case of stalking, harassment, or threatening.
The state and local governments also regulate the possession, purchase, and transportation of guns. The dealer must be at least 21 years old to obtain a Federal Firearm License (FFL), inform the local enforcement about the store, not be convicted or mentally unstable, pay the license fee initially for three years, and subsequently follow a three-year renewal. Before handing out the firearm to the purchaser, the dealer must do the background check and whether he has the FFL license.
According to the amendment of GCA known as the Brady Handgun Violence Prevention Act of 1993, the FFL holder must do the background check through the federal form filled by the purchaser. The state decides whether solely the FBI’s National Instant Criminal Background Check System (NICS) is adequate for the background check or, in addition, some state the agency is also necessary. The FFL holder may check online the status of the purchaser whether approved, denied, or delayed thus after it is on the FFL holder to sell it or not.
Only dozens of US states require purchase permits. For carrying guns, most of the states require permits. Whether it is concealed carry or open carry, the permit required is different from different states. Some states allow carrying guns without permits also. Some states require people carrying guns with some form of ID or firearm identification.
According to ATF, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, selling guns from home, online, flea market, or at a gun show is not required to do background checks during the gun transfer. Thus the principal motive is that the person not doing regular business or acquiring regular profit from the sale does not require to obtain FFL; hence the Gunshow loophole explains the ambiguity about how the purchase occurs without the background check.
Mass shooting in the United States
Between 1982 and 2021, there have been 124 reported cases of mass shootings. The handgun was the most common weapon used, around 78 percent. The worst mass shooting in US history was the Las Vegas massacre, the casualties were 58 dead and 546 injured. In the massacre at the Pulse nightclub in Orlando, the casualties were 49 dead and 53 injured. In the Virginia Tech slaughter (Blacksburg, Virginia, 2007), the casualties were 32 dead and 23 injured. In the massacre at the Texas First Baptist Church, casualties were 26 dead and 20 injured.
Thus, these were the highest casualties of mass shootings in America. In all these cases, semi-automatic weapons were used, allowing the shooter to shoot without reloading the rifles. Thus the debate around the necessity of assault weapons for self-defence is being considered. Congress tried to outlaw the sale of some semi-automatic guns, but the result was not impressive. The rate of gun homicide came down, but they continued to fall even after the expiration of the ban.
However, banning assault weapons is the only way to reduce the casualties during mass shootings. Raising the age of acquiring semiautomatic weapons is also proposed. Since 2009, two mass shootings were done by persons who were aged less than 21. The idea of mandatory buy-back of these assault weapons could also bring improvement in the situation. Reducing large-capacity magazines and banning these assault weapons would be effective and would bring a marginal improvement.
Need for firearms reform idea in the USA
- Red flags laws. This is known as an “extreme risk protection order.” In this, law enforcement could remove the firearm from an individual if they believe that the individual may use the weapon to harm someone.
- Background check, according to federal law, license dealers only have to do the background check; private dealers do not have to do it. Thus, most guns are sold without a background check. To strengthen this, one has to close the Gunshow loophole. Close the boyfriend gap, which means having a domestic violence misdemeanour should not acquire a gun. According to statistics, around 260 Americans were killed by their spouses, ex-spouses, or dating partners between 2006- 2014.
- Implement a waiting period after the purchase of weapons. This might prevent the occurrence of suicides. In South Dakota, when the authority repealed the 48 hours waiting period, the suicide rates jump 7.6 percent in the following year.
- Compelling the manufacturer to install safety devices in the weapons, such as built-in locks. In short, a smart gun will prevent others from using it, especially children. The federal government showed that 68 percent of gun shooting in school was perpetrated by the shooter who had easy access or obtained a gun from their homes or relatives
- Limit purchasing of guns to one per month, this will prevent the middlemen from buying guns in bulk and selling them to the juvenile and criminals.
The interpretation of the second amendment in Heller has increased the tendency of America to bring more guns into the nation. The concerted advocacy by the NRA and profiteering of the manufacturer has made the United States the world leader in gun ownership. Guns are continuously used in America to spread violence. There needs to be a stricter check on the possession, purchase, and transportation of guns. Individuals’ right to possess guns cannot override the interest of the well-regulated militia. It would be difficult for the organised militia to check on the nation’s security if every citizen carries a gun and uses it in the way they want. The state should have the necessary power to disarm the citizen to protect and secure the nation’s safety.
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