Dr. Kevin Lasher

1. POLI 101: U.S. Government Dr. Kevin Lasher

2. Second Amendment

6. 4 incidents of 10-20 deaths in 2018 3 incidents of 10-20 deaths in 2019

15. Second Amendment “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.”

16. Second Amendment • Should not be surprised that there is a lack of clarity about what the framers of the Second Amendment meant (confusion about original intent of many parts of Bill of Rights) • Admittedly confusing language

17. Second Amendment • Second Amendment is located within a Bill of Rights which clearly speaks about individual rights • Common law (from England) tradition of using guns as a means of self defense was well know to the Founding generation • English Bill of Rights (1689) protected the rights of Protestants to possess arms • American colonists were British citizens

18. Second Amendment • Founding generation was very concerned about preserving the ability of the states to maintain their own militias (fear of standing army) • State militias were a protector against foreign powers and possibly the excessive power of the new national government • White male citizens (18-45) were required to be part of the state militia; they were not only allowed to possess arms, they were REQUIRED to do so • Being armed/serving in militia was civic duty • States also regulated the possession of firearms in a variety of ways so that the militia would be prepared

19. Second Amendment “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” So what did the Second Amendment mean to its framers and what does it mean today?

20. What did the 2nd Amendment mean to its Framers? “Let us be clear: the eloquent men who wrote ‘we the people’ and the First Amendment did us no favors in the drafting of the Second Amendment. One reason that it was ignored for so long is that is so inscrutable.” Michael Waldman, The Second Amendment: A Biography

21. What did the 2nd Amendment mean to its Framers? • Good deal of uncertainty about what creators of 2nd Amendment intended • My conclusion: there was a “common law” right of possessing firearms for self-defense and Second Amendment did NOT negate that right • But Second Amendment was primarily about preventing the federal government from eliminating the various state militias that existed • Focus was on preserving the state militias • All of the Bill of Rights were a somewhat rushed political compromise – to appease remaining Anti-Federalists after ratification is complete • We need, but don’t have, “explanatory footnotes”

22. What does the 2nd Amendment mean today? • There IS an individual right to possess firearms – because Supreme Court has ruled that there is • National, state and local governments cannot infringe on that right • This right is not absolute -- certain gun control measures are allowed; however, it is unclear exactly what type of gun control measures are permitted • This position is very new (2008, 2010) • The language about state militias has basically become irrelevant

23. Supreme Court and 2nd Amendment • Until recently the Supreme Court has had very little to say about the meaning of the Second Amendment • Issue of gun control vs. gun rights has been primarily a political battle • Supreme Court did not examine meaning of Bill of Rights until 1930s • The National Rifle Association (NRA) has been very successful in pushing the individual rights approach in national and state legislatures and among the American people

24. United States v. Cruikshank (1876) • Involved prosecution of several white citizens of Louisiana who had attacked and killed many African American citizens in a dispute over the gubernatorial election of 1872 • Examined several parts of Bill of Rights and whether they applied to the states and meaning of 14th Amendment • The right to bear arms for a lawful purpose “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government…” • Implies a “natural right” of bearing arms • Second Amendment does NOT apply to states

25. Presser v. Illinois (1886) • Involved private militia created by Socialist Herman Presser in violation of Illinois law • Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state.” • Just stated again that Second Amendment did not apply to state governments

26. United States v. Miller (1939) • National Firearms Act of 1934 required registration of automatic firearms and short-barreled shotguns (gangster weapons); prevented transfer of such weapons across state lines • Defendant illegally transported sawed-off shotgun across state lines • Supreme Court ruled that there was no right to possess such a weapon under the 2nd Amendment • “With obvious purpose to assure the continuation and render possible the effectiveness of such (militia) forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

27. United States v. Miller (1939) • “In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” • Decision really does not define the Second Amendment; forbids non-militia type weapons (sawed-off shotgun); implies a right to possess militia-related weapons • Generally interpreted as supporting “collective rights” view of Second Amendment (but some disagree) • Supreme Court “goes silent” on Second Amendment cases for next seventy years

28. Supreme Court and 2nd Amendment • While Supreme Court dissected the meaning of most of the components of the Bill of Rights since the 1930s, it said almost nothing about the meaning of the 2nd Amendment • 2nd Amendment was left “unincorporated” • Seemed to embrace collective rights view, but evidence is murky • Mostly ignored 2nd Amendment

29. National Rifle Association • Interest group formed in 1871 to promote marksmanship (and later hunting) • Little influence for 100 years • Begins to adopt ultra-conservative position on individual gun rights in 1960s and 1970s • Transformed into extremely powerful interest group which champions the view that the 2nd Amendment is PRIMARILY about protecting a citizen’s right to possess firearms • Strongly opposes almost any new gun control legislation today (not always the case)

30. National Rifle Association • Joins with other conservative groups, scholars and think tanks to promote the individual rights approach to 2nd Amendment since 1970s • Scores of law journal articles supporting the individual rights view appear in following decades • Lobbies legislators to oppose new gun control measures

31. Citizens’ view of 2nd Amendment • Gallup poll in 2008 said that 73% of Americans believed that the Second Amendment protected an individual right to possess firearms

32. Supreme Court and 2nd Amendment • Supreme Court with conservative majority since 1990s

33. District of Columbia v. Heller (2008) • Examined Washington, DC’s ban on possession of handguns • Declared such a ban as a violation of the 2nd Amendment • Supreme Court (5-4) ruled that the 2nd Amendment protected an individual’s right to own a gun   • Adopted the individual rights view and rejected the collective rights view • Right to bear arms separate from participation in the militia • Similar to other individual rights – freedom of speech, right to a lawyer, right to a speedy trial • Codifies a pre-existing right (that cannot be infringed) • Right to bear arms at the national level – since the District of Columbia is legally part of the federal government

34. District of Columbia v. Heller (2008) “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ”

35. District of Columbia v. Heller (2008) “Reading the Second Amendment as protecting only the right to ‘keep and bear Arms’ in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as ‘the people.’ … We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

36. District of Columbia v. Heller (2008) “The Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

37. District of Columbia v. Heller (2008) “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. …Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” No explanation for these exceptions

38. District of Columbia v. Heller (2008) “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

39. District of Columbia v. Heller (2008) “ We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns … But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

40. McDonald v. Chicago (2010) • Examined city of Chicago ban on handguns • Supreme Court (5-4) confirmed that the 2nd Amendment protected an individual’s right to own a gun • Supreme Court also incorporated the 2nd Amendment so that it applies to states (first incorporation case in forty years) • Natural follow-up to Heller case • Most of the discussion is simply a justification for incorporation of the Second Amendment • So important because most limitations on gun ownership are at the state and local level

41. McDonald v. Chicago (2010) • Did not declare all gun control measures as unconstitutional • Gun control laws will continue to be tested

42. McDonald v. Chicago (2010) “In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” “We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.”

43. McDonald v. Chicago (2010) “Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents' argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States…”

44. Conclusion After 200 years of mostly ignoring the 2nd Amendment, the Supreme Court in 2008 stated that the amendment guarantees an individual right to own guns In 2010 the 2nd Amendment was “incorporated” – so important because many gun control laws are state or local Supreme Court admitted that various gun control measures can be constitutional Left almost no guidance as to what types of gun control measures are and are not permissible Federal and state courts have upheld most (not all) existing gun control measures since Heller and McDonald

45. Conclusion Any talk of federal government or state government “seizing guns” is nonsense and scare tactics Limits on gun rights have returned to the political process where NRA wields immense power The United States is overflowing with various kinds of guns and suffers from much higher levels of gun violence than other advanced democracies There needs to be a “common sense” approach that combines the fundamental right of gun ownership with reasonable gun control measures which can reduce the amount of gun violence in the country Unlikely anytime soon

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