This article is written by Varchaswa Dubey from the School of Law, JECRC University, Jaipur. This article aims at reflecting the impacts caused by the second amendment in the USA.
The issue of firearms has always persisted in the United States of America, and the consequences it has on society at large have mostly been negative. The Second Amendment in the US has laid down the rights of citizens to possess firearms for defence in their residences and states that – “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.” Militia refers to a group of people who possess firearms that are available for emergency services like the defence of the country.
The Second Amendment has granted the right to possess firearms as an individual right to the citizens of the USA and the availability of such right has its effect which is discussed in this article.
Origin of the Second Amendment
The founding fathers of America were of the view that militia is the second army after the professionally trained army who is being paid to defend the country. The militias are a group of people who shall be employed in case the main army needs assistance in any manner. The second amendment was written in the year 1791 as one of the 10 amendments in the bill of rights.
Initially, the founding fathers had only three options, i.e, to either only employ a standing army, to only depend on militias to safeguard America or to use each other for the assistance, and subsequently, the founding fathers adopted the last option, i.e. to have a militia and a standing army.
While America was being ruled by the Britishers, the right to bear firearms was only possessed by wealthy landowners and poachers. But after independence, the founding fathers considered this one of the essential rights.
Standing army vis-a-vis militia
The War of Independence was fought by fourteen independent military organizations like the continental army under George Washington and other thirteen colonial militias. The debate regarding the benefits of standing armies and the militia continued even during the war. The 13 colonial militias not only lacked training but also uniform, proper weapons, food, etc., and eventually, the birth of the U.S. Army took place on 14th June 1775 under the command of George Washington which was considered as a standing army, an army of paid soldiers who were trained and well equipped.
According to Joseph Story’s commentary on the Constitution – “the militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
District of Columbia v. Heller (2008)
In this case, the Supreme Court of the United States has upheld the right to possess firearms by the US citizens who do not belong to any militia group.
Background of the case
In 1976, the District of Columbia banned the possession of handguns that were not possessed and registered before by the Firearms Control Regulations Act, 1975. The petitioner in the present case sought a registration certificate to get a handgun he intended to keep at home, however, the District of Columbia refused him. Five other individuals, including the petitioner of Shelly Parker v. District of Columbia (2007), filed the present case however, none of the plaintiffs claimed that they belonged to any militia group. But the District Court of Columbia rejected their plea by emphasizing the case of The United States v. Miller (1939), where the court had held that – “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of fewer than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument”.
The Supreme Court of the United States, while agreeing to hear a case concerning the second amendment, is itself a historic moment since this was the first time in around 70 years that the court has considered a case regarding the second amendment. The court during its proceedings considered more than 30 Amicus Curiae (friend of the court) who belonged to diverse fields like the American Public Health Association, National Rifle Association, and the National Association for the Advancement of Colored People, who presented their views on gun ownership and regulation.
The apex court by a 5:4 decision invalidated the federal law, i.e. Firearms Control Regulation Act, 1975 which earlier barred all citizens except for army personnel and militia groups from possessing guns in Columbia, and the second amendment protection was extended to individuals in other states as well. The judgment granted individuals the right to possess handguns to safeguard their houses. The Supreme Court of the United States held that – “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defence, within the home”.
McDonald v. Chicago (2010)
In this case, the issue before the court arose regarding the right to keep and bear arms, which is protected by privileges or immunities clauses of the Fourteenth Amendment.
The case initially arose when the Heller case failed to explain whether the Second Amendment affects state or local firearm laws or only limits the power of the federal government. The case briefly unfolds as, in the year 2008, Mr. Otis McDonald challenged the 1976 law which banned possession of guns and firearms. After this suit, several other suits were also filed because the ban on firearms violates their rights. The District Court of Chicago dismissed the case. However, a re-appeal in the Supreme Court of the United States accepted the plea.
The court ruled that – “The Second Amendment right recognized in the case of Heller applies not only to the Federal Government but also to states and municipalities”. Justice Alito held – “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defence is ‘the central component’ of the Second Amendment right”.
The impact of the Second Amendment in the USA
Providing American citizens with the right of possessing firearms has not only caused a public debate over the consequences of firearms and sparked violence for firearms. The effects of the second amendment in the US are:
Mass shootings refer to the incident which involves shooting one or more firearms at a large number of people who are random victims. Mass shootings have increased in the United States with an average of 51 innocent lives every year.
Some cases of a mass shooting are:
- Columbine High School shooting: The incident occurred on 20th April 1999, where two teenagers went on to open a mass shooting which resulted in the death of 12 students and 1 teacher leaving at least 20 others wounded.
- Sandy Hook School shooting: The incident occurred on 14th December 2012, where a 20-year-old boy, after killing his mother, shot dead 28 innocent people leaving 2 others wounded in Sandy hook elementary school.
- Las Vegas Hotel shooting: The incident occurred on 1st October 2017, when a gunman opened fire at a crowd of around 22,000 people who were attending a concert. The gunman fired from his hotel room on the 32nd floor, killing 59 people and injuring more than 500 people.
According to a report by CNN and gun violence archive, 2021 has witnessed 272 mass shootings, as of June 2021 which, on average, is 40% higher at this point as compared to 2020, and approx. 65% higher as compared to this point of 2019.
Degradation of public health
According to a report, 87% of Americans consider gun violence as a public threat. Gun violence is considered one of the most atrocious acts which result in numerous people losing life every year.
According to a report of Amnesty International, firearms have resulted in derogatory public health conditions and especially of those who reside in areas where gun possession is more because, in such areas, gun violence has higher chances. Most of the gun violence is the result of gang clashes and robberies. This leads to obstruction in the path of justice and frequent police investigation and exhausting national resources.
Gun violence not only kills the innocent but it creates lifelong trauma on victims who are left severely injured, and on those who have witnessed the gun violence, including the family member of the victim.
According to a report, around 39,773 people died from gun-related injuries in the U.S. of which around 60% of the deaths were suicide and the number is high in the states where gun possession is high. The US gun suicide rate is 10 times that of other high-income countries and the reason for such a large number of atrocities is associated with possession of firearms.
Black American victims
According to a report, black Americans experience nearly 10 times more gun violence, 15 times more gun assaults, and 3 times more shootings from White American police. On average, 26 black Americans are a victim of gun violence each day and on average around 104 injuries are witnessed by Black Americans in America. Gun violence has led to the loss of more Black American lives and the reason for it is racial discrimination which the US still has considering black African-Americans.
According to another report, the black teens and men are a victim of more than 1/3 of the total firearms violence in the USA in the year 2019.
Fear of gun violence
Most of the Americans who do not possess any firearms live under the fear of gun violence which caused a permanent place in the hearts of Americans who may or may not possess any firearms. Gun violence is usually high in areas where the number of individuals possessing guns is high and in such areas, others who do not possess firearms due to any reason have fear.
Impact on the children
The children are the most vulnerable victims of gun violence as such incidents may not only create permanent trauma but also such children may adopt firearms as a means of settlement and vengeance, leading to violation of the law.
Impact on women
Many women are widows because their husbands were a victim of gun violence. Furthermore, the chances of rape at gunpoint are more.
The Second Amendment under the Bills of Rights creates provision for the right to have firearms regarding militias, the purpose of which is to assist the National Army in times. However, there are no pieces of evidence to support their claim whether the US needs militias to protect its sovereignty, but conclusive proofs of firearms violence have been established by this article and therefore, the US must abandon the right to firearms if the nation desires to protect the lives of its citizens.
Despite, various discussions on legislations and the current firearms policy in the United State regarding the sale, purchase, manufacturing, transportation, ownership, possession, etc., the American judiciary has not yet provided with how these factors are more essential than compared to the lives of those innocent who are killed every year as a consequence of such a dangerous law being enforced. Indeed, the thinkings of the founding fathers cannot be withheld, neither their practices are abolished. However, the US has certainly failed in protecting the lives of innocent victims of gun violence.
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