Gun politics in the United States

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Gun politics is a controversial issue in American politics that is primarily defined by the actions of two groups: gun control and gun rights activists. These groups often disagree on the interpretation of laws and court cases related to firearms as well as about the effects of gun control on crime and public safety. They also disagree about gun violence comparisons between the U.S. and other countries.[1]:7

Since the 1990s, debates regarding firearm availability and gun violence in the U.S. have been characterized by concerns about the right to bear arms found in the Second Amendment to the U.S. Constitution, and the responsibility of the government to serve the needs of its citizens and to prevent crime and deaths. Gun control supporters say that broad or unrestricted gun rights inhibit the government from fulfilling that responsibility.[2]:1–3[3] Gun rights supporters promote firearms for self-defense, hunting, and sporting activities.[4]:96 Gun control advocates state that keeping guns out of the hands of criminals results in safer communities, while gun rights advocates state that firearm ownership by law-abiding citizens reduces crime.

There is further unresolved debate regarding the relationship between guns and violence. For example, a 2003 study by the Centers for Disease Control called for further study, because there was "insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes".[5]

Gun legislation in the United States is constrained by judicial interpretations of the Constitution. In 1789, the United States adopted the Second Amendment, and in 1868 adopted the Fourteenth Amendment. The effect of those two amendments on gun politics was the subject of landmark U.S. Supreme Court decisions in 2008 and 2010 respectively, that upheld the right for individuals to possess guns for self-defense.

History[edit]

Political scientist Robert Spitzer says that the U.S. "gun culture is generally recognized, rightly or wrongly, as a key component of the American mythic tradition."[1]:8 Spitzer says that the modern American gun culture has at least two historical elements: the militia/frontier ethos of the colonial era and the American Revolution, and the hunting/sporting ethos.[1]:8–10 Proponents of individuals' gun rights such as Stephen Halbrook place them in a larger, even ancient context, arguing that the right to bear arms derives from the rights of freemen under English Common Law and of the citizens of a republic described as early as the time of Plato and Aristotle. According to Halbrook, common law construction came to establish the right of freemen to be armed, both before and after the Glorious Revolution of 1688, and were further enshrined in the 1689 Bill of Rights, and through long-standing judicial construction. These English rights, says Halbrook, formed the basis for the belief shared by many Americans that common law guaranteed citizens the right to keep and carry arms.[6]

Calamity Jane, notable pioneer frontierswoman and scout, at age 43. Photo by H.R. Locke.

The American hunting tradition comes from a time when the United States was an agrarian, subsistence nation where hunting was a profession for some, 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 men was in many cases a necessity and a 'rite of passage' for those entering manhood.[1]:9 Today, hunting survives as a central sentimental component of a gun culture as a way to control animal populations across the country, regardless of modern trends away from subsistence hunting and rural living.[3]

The militia/frontiersman spirit derives from an early American dependence on arms to protect themselves from foreign armies and hostile Native Americans. Survival depended upon everyone being capable of using a weapon. Prior to the American Revolution there was neither budget nor manpower nor government desire to maintain a full-time army. Therefore, the armed citizen-soldier carried the responsibility. Service in militia, including providing one's own ammunition and weapons, was mandatory for all men—just as registering for military service upon turning eighteen is today. Yet, as early as the 1790s, the mandatory universal militia duty evolved gradually to voluntary militia units and a reliance on a regular army. Throughout the 19th century the institution of the organized civilian militia began to decline.[1]:10 The unorganized civilian militia, however, still remains even in current U.S. law, consisting of essentially everyone from age 17 to 45, while also including former military officers up to age 64, as codified in 10 U.S.C. § 311.

Closely related to the militia tradition is the frontier tradition, with the need for self-protection pursuant to westward expansion and the extension of the American frontier.[1]:10–11 Though it has not been a necessary part of daily survival for over a century, "generations of Americans continued to embrace and glorify it as a living inheritance—as a permanent ingredient of this nation's style and culture".[7]:21

Colonial era and the American Revolution[edit]

Gun politics date to Colonial America. (Lexington Minuteman, representing John Parker, by Henry Hudson Kitson stands at the town green of Lexington, Massachusetts.)

In the years prior to the American Revolution, the British, in response to the colonists' unhappiness over increasingly direct control and taxation of the colonies, imposed a gunpowder embargo on the colonies in an attempt to lessen the ability of the colonists to resist British encroachments into what the colonies regarded as local matters. Two direct attempts to disarm the colonial militias fanned what had been a smoldering resentment of British interference into the fires of war.[8]

These two incidents were the attempt to confiscate the cannon of the Concord and Lexington militias, leading to the Battles of Lexington and Concord of April 19, 1775, and the attempt, on April 20, to confiscate militia powder stores in the armory of Williamsburg, Virginia, which led to the Gunpowder Incident and a face off between Patrick Henry and hundreds of militia members on one side and the Royal Governor of Virginia, Lord Dunmore, and British seamen on the other. The Gunpowder Incident was eventually settled by paying the colonists for the powder.[8]

Minutemen were members of teams of select men from the American colonial militia during the Revolutionary War who vowed to be ready for battle against the British within one minute of receiving notice[citation needed]. On the night of April 18/April 19, 1775, minuteman Paul Revere, William Dawes, and Dr. Samuel Prescott spread the news that "the Regulars are coming out!"[9] Revere was captured before completing his mission when the British marched towards the armory in Lexington and Concord to seize the Massachusetts militia's gunpowder magazine which had been hidden there. Only Dr. Prescott was able to complete the journey to Concord.[10]:33

Jacksonian era[edit]

According to historian Saul Cornell, states passed some of the first gun control laws, beginning with Kentucky's law to "curb the practice of carrying concealed weapons in 1813." There was opposition and, as a result, the individual right interpretation of the Second Amendment began and grew in direct response to these early gun control laws, in keeping with this new "pervasive spirit of individualism." As noted by Cornell, "Ironically, the first gun control movement helped give birth to the first self-conscious gun rights ideology built around a constitutional right of individual self-defense."[11]:140–141

The individual right interpretation of the Second Amendment first arose in Bliss v. Commonwealth (1822, KY),[12] which evaluated the right to bear arms in defense of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799). The right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about "a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment".[13]

The first state court decision relevant to the "right to bear arms" issue was Bliss v. Commonwealth. The Kentucky court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire,..."[14]:161[15]

Also during the Jacksonian Era, the first collective right interpretation of the Second Amendment arose. In State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense",[16] while rejecting a challenge to a statute prohibiting the carrying of concealed weapons.

The Arkansas high court declared "That the words 'a well regulated militia being necessary for the security of a free State', and the words 'common defense' clearly show the true intent and meaning of these Constitutions [i.e., Arkansas and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop's influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the "Arkansas doctrine", as the orthodox view of the right to bear arms in American law.[16][17]

The two early state court cases, Bliss and Buzzard, set the fundamental dichotomy in interpreting the Second Amendment, i.e., whether it secured an individual right versus a collective right.[citation needed] A debate about how to interpret the Second Amendment evolved through the decades and remained unresolved until the 2008 District of Columbia v. Heller U.S. Supreme Court decision.

Reconstruction era[edit]

With the Civil War ending, the question of the rights of freed slaves to carry arms and to belong to militia came to the attention of the federal courts. In response to the problems freed slaves faced in the Southern states, the Fourteenth Amendment was drafted.

Representative John A. Bingham of Ohio, principal framer of the Fourteenth Amendment

When the Fourteenth Amendment was drafted, Representative John A. Bingham of Ohio used the Court's own phrase "privileges and immunities of citizens" to include the first Eight Amendments of the Bill of Rights under its protection and guard these rights against state legislation.[18]

The debate in the Congress on the Fourteenth Amendment after the Civil War also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.

The Second Amendment attracted serious judicial attention with the Reconstruction era case of United States v. Cruikshank which ruled that the Privileges and Immunities Clause of the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments, stating that the Second Amendment "has no other effect than to restrict the powers of the national government."

Akhil Reed Amar notes in the Yale Law Journal, the basis of Common Law for the first ten amendments of the U.S. Constitution, which would include the Second Amendment, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist Haymarket Riot case, Spies v. Illinois":

Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights—common law rights—of the man, they make them privileges and immunities of the man as citizen of the United States...[19]

:1270

20th century[edit]

One of the first major federal firearm legislation passed in the 20th century was the National Firearms Act (NFA) of 1934. It was passed after Prohibition-era gangsterism peaked with the Saint Valentine's Day massacre of 1929. The era was famous for criminal use of firearms such as the Thompson submachine gun (Tommy gun) and sawed-off shotgun. Under the NFA, machine guns, short-barreled rifles and shotguns, and other weapons fall under the regulation and jurisdiction of the Bureau of Alcohol, Tobacco and Firearms (ATF) as described by Title II of the U.S. Code.[20]

President Lyndon B. Johnson signs the Gun Control Act of 1968 into law

The next significant federal firearm legislation was the Gun Control Act of 1968 (GCA), which was passed after the assassinations of President John F. Kennedy, Senator Robert Kennedy, and African-American activists Malcolm X and Martin Luther King, Jr. in the 1960s.[1]

Chaos outside the Washington Hilton Hotel after the 1981 assassination attempt on President Reagan. James Brady and police officer Thomas Delahanty lie wounded on the ground.

The murder of musician John Lennon in 1980 and an assassination attempt on President Ronald Reagan in 1981 led to enactment of the Brady Handgun Violence Prevention Act (Brady Law) in 1993 which established the national background check system to prevent certain restricted individuals from owning, purchasing, or transporting firearms.[21] A Stockton, California, schoolyard shooting in 1989 led to passage of the Assault Weapons Ban in 1994 which banned the manufacture and transfer of certain newly manufactured semi-automatic firearms and ammunition feeding devices (magazines).[citation needed]

About the same time, two high profile incidents involving the ATF, Ruby Ridge and the Waco siege, are thought to have encouraged a modern militia movement by citizens who feared that the federal government would begin to confiscate firearms.[22]

The United States was generally seen as having the least stringent gun control laws in the developed world, with the possible exception of Switzerland, in part due to the strength of the gun rights advocate groups.[23]

Advocacy groups[edit]

The National Rifle Association (NRA) was founded to promote firearm competency in 1871. The NRA supported the NFA and, ultimately, the GCA.[24] After the GCA, however, more strident groups, such as the Gun Owners of America (GOA), began to advocate for gun rights.[25] In 1977, the NRA underwent a restructuring and it became more politically engaged.[25]

The gun control group known as the Brady Campaign to Prevent Gun Violence began in 1974 as Handgun Control Inc. (HCI). Soon after, it formed a partnership with another fledgling group called the National Coalition to Ban Handguns (NCBH) - later known as the Coalition to Stop Gun Violence (CSGV). The partnership did not last, as NCBH generally took a tougher stand on gun regulation than HCI.[26]:186

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.[citation needed] 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.[27]

According to the GOA, it was founded in 1975 when "the radical left introduced legislation to ban all handguns in California."[28] The GOA and other national groups like the Second Amendment Foundation (SAF), Jews for the Preservation of Firearms Ownership (JPFO), and the Second Amendment Sisters (SAS), often take stronger stances than the NRA and criticize its history of support for some firearms legislation, such as GCA. These groups believe any compromise leads to incrementally greater restrictions.[29]:368[30]:172

21st century[edit]

President Barack Obama skeet shooting at Camp David.

In October 2003, the Centers for Disease Control and Prevention published a report on the effectiveness of gun violence prevention strategies that concluded "Evidence was insufficient to determine the effectiveness of any of these laws."[5]:14 A similar survey of firearms research by the National Academy of Sciences arrived at nearly identical conclusions in 2004.[31] In September of that year, the Assault Weapons Ban expired due to a sunset provision. Efforts by gun control advocates to renew the ban failed, as did attempts to replace it after it became defunct.

The NRA opposed bans on handguns in Washington D.C. and San Francisco, while supporting the NICS Improvement Amendments Act of 2007 (also known as the School Safety And Law Enforcement Improvement Act), which strengthened requirements for background checks for firearm purchases.[32] The GOA took issue with a portion of the bill, which they termed the "Veterans' Disarmament Act."[33]

Besides the GOA, other national gun rights groups continue to take a stronger stance than the NRA. Including groups such as The Second Amendment Sisters, Second Amendment Foundation, Jews for the Preservation of Firearms Ownership, and the Pink Pistols. New groups have also arisen, such as the Students for Concealed Carry, which grew largely out of safety-issues resulting from the creation of 'Gun-free' zones that were legislatively mandated amidst a response to widely publicized school shootings.

In 2001, in United States v. Emerson, the Fifth Circuit became the first federal appeals court to recognize an individual's right to own guns. In 2007, in Parker v. District of Columbia, the D.C. Circuit became the first federal appeals court to strike down a gun control law on Second Amendment grounds.[34] In 2008, in District of Columbia v. Heller, the Supreme Court upheld the Parker decision, that Americans have an individual right to possess firearms "for traditionally lawful purposes, such as self-defense within the home."[35] However, in delivering his ruling in Heller, Justice Antonin Scalia made clear that the right is limited, writing:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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.[36]

In August 2012, an open source group called Defense Distributed launched a project to design and release a blueprint for a handgun that could be downloaded from the Internet and manufactured using a 3-D printer.[37][38] In May 2013, the group made public the STL files for the world's first fully 3D printable gun, the Liberator .380 single shot pistol.[39][40][41]

Advocacy groups and political action committees[edit]

One way advocacy groups influence politics is through "outside spending," using political action committees (PACs) and 501(c)(4) organizations.[42] PACs and 501(c)(4)s raise and spend money to affect elections.[43][44] PACs pool campaign contributions from members and donate those funds to candidates for political office.[45] Super PACs, created in 2010, are prohibited from making direct contributions to candidates or parties, but influence races by running ads for or against specific candidates.[46] Both gun control and gun rights advocates use these types of organizations.

The NRA's Political Victory Fund super PAC spent $11.2 million in the 2012 election cycle,[47] and as of April 2014, it had raised $13.7 million for 2014 elections.[48] Michael Bloomberg's gun-control super PAC, Independence USA, spent $8.3 million in 2012[49][50] and $6.3 million in 2013.[51] Americans for Responsible Solutions, a PAC started by retired Congresswoman Gabrielle Giffords, raised $12 million in 2013,[52] and plans to raise $16 to $20 million by the 2014 elections.[53] The group's treasurer said that the funds would be enough to compete with the NRA "on an even-keel basis."[53]

Another way advocacy groups influence politics is through lobbying; some groups use lobbying firms, while others employ in-house lobbyists. According to the Center for Responsive Politics, gun politics groups with the most lobbyists in 2013 were: the NRA's Institute for Legislative Action (NRA-ILA); Mayors Against Illegal Guns (MAIG); the National Shooting Sports Foundation (NSSF); and the Brady Campaign.[54] Gun rights groups spent over $15.1 million lobbying in Washington D.C. in 2013, with the National Association for Gun Rights (NAGR) spending $6.7 million, and the NRA spending $3.4 million.[55] Gun control groups spent $2.2 million, with MAIG spending $1.7 million, and the Brady Campaign spending $250,000 in the same period.[56]

Proposals by Obama Administration[edit]

On January 16, 2013, in response to the Sandy Hook Elementary School shooting and other mass shootings, President Barack Obama announced a plan for reducing gun violence in four parts: closing background check loopholes; banning assault weapons and high-capacity magazines; making schools safer; and increasing access to mental health services.[57][58]:2 The plan included proposals for new laws to be passed by Congress, and a series of executive actions not requiring Congressional approval.[59][60][61] No new federal gun control legislation was passed as a result of these proposals.[62]

The executive actions included:

  • Improve the data used for the background check system for gun sales
  • Direct the Centers for Disease Control and Prevention to research gun violence[63]
  • Provide incentives for schools to hire school resource officers
  • Give law enforcement additional tools to prevent and prosecute gun crime

2013 United Nations Arms Treaty[edit]

The Arms Trade Treaty (ATT) is a multilateral treaty that regulates the international trade in conventional weapons, which has not entered into force. Work on the treaty commenced in 2006 with negotiations for its content conducted at a global conference under the auspices of the United Nations from July 2–27, 2012, in New York.[64] As it was not possible to reach an agreement on a final text at that time, a new meeting for the conference was scheduled for March 18–28, 2013.[65] On 2 April 2013, the UN General Assembly adopted the ATT.[66][67] The treaty was opened for signing on June 3, 2013 and has been signed by 115 states and ratified or acceded to by 8. It will enter into force after it has been ratified or acceded to by 50 states.[68]

On September 25, 2013, Secretary of State John Kerry signed the ATT on behalf of the Obama administration. This was a reversal of the position of the Bush administration which had chosen not to participate in the treaty negotiations. Then in October a bipartisan group of fifty Senators and 181 Representatives released concurrent letters to President Obama pledging their opposition to ratification of the ATT. The group is led by Senator Jerry Moran (R-Kansas) and Representatives Mike Kelly (R-Pennsylvania) and Collin Peterson (D-Minnesota). Following these two letters, four Democrat Senators sent a separate letter to the President stating that "because of unaddressed concerns that this Treaty’s obligations could undermine our nation’s sovereignty and the Second Amendment rights of law-abiding Americans [they] would oppose the Treaty if it were to come before the U.S. Senate." The four Senators are Jon Tester (D-Montana), Max Baucus (D-Montana), Heidi Heitkamp (D-North Dakota), and Joe Donnelly (D-Indiana).[69][70]

Supporters of the treaty claim that the treaty is needed to help protect millions around the globe in danger of human rights abuses. Frank Jannuzi of Amnesty International USA states, "This treaty says that nations must not export arms and ammunition where there is an 'overriding risk' that they will be used to commit serious human rights violations. It will help keep arms out of the hands of the wrong people: those responsible for upwards of 1,500 deaths worldwide every day."[71] Secretary Kerry was quoted as saying that his signature would "help deter the transfer of conventional weapons used to carry out the world's worst crimes."[72] As of December 2013, the U.S. has not ratified or acceded to the treaty.

Public opinion[edit]

Polls[edit]

March on Washington for Gun Control in January 2013

Huffington Post reported in September 2013 that 48% of Americans said gun laws should be made more strict, while 16% said they should be made less strict and 29% said there should be no change.[73] Similarly, a Gallup poll found that support for stricter gun laws has fallen from 58% after the Newtown shooting, to 49% in September 2013.[73] Both the Huffington Post poll and the Gallup poll were conducted after the Navy Yard shooting.[73] Meanwhile, the Huffington Post poll found that 40% of Americans believe stricter gun laws would prevent future mass shootings, while 52% said changing things would not make a difference.[73] The same poll also found that 57% of Americans think better mental health care is more likely to prevent future mass shootings than stricter gun laws, while 29% said the opposite.[73]

Gallup poll[edit]

The Gallup organization regularly polls Americans on their views on guns. As of December 22, 2012:[74]

  • 44% supported a ban on "semi-automatic guns known as assault rifles."
  • 92% supported background checks on all gun-show gun sales.
  • 62% supported a ban on "high-capacity ammunition clips that can contain more than 10 bullets."

As of April 25, 2013:[75]

  • 56% supported reinstating and strengthening the assault weapons ban of 1994.
  • 83% supported requiring background checks for all gun purchases.
  • 51% supported limiting the sale of ammunition magazines to those with 10 rounds or less.

As of October 6, 2013:[76]

  • 49% felt that gun laws should be more strict.
  • 74% opposed civilian handgun bans.
  • 37% said they had a gun in their home.
  • 27% said they personally owned a gun.
  • 60% of gun owners have guns for personal safety/protection, 36% for hunting, 13% for recreation/sport, 8% for target shooting, 5% for Second Amendment right.

As of January 2014:[77]

  • 40% are satisfied with the current state of gun laws, 55% are dissatisfied
  • 31% want stricter control, 16% want less strict laws

National Rifle Association[edit]

A poll conducted for the NRA of 1,000 of its members between January 13 and January 14, 2013 found:[78]

  • 90.7% of members favor "Reforming our mental health laws to help keep firearms out of the hands of people with mental illness." (A majority of 86.4% believe that strengthening laws this way would be more effective at preventing mass murders than banning semi-automatic rifles.)
  • 92.2% of NRA members oppose gun confiscation via mandatory buy-back laws.
  • 88.5% oppose banning semi-automatic firearms, firearms that shoot one bullet per trigger pull.
  • 92.6% oppose a law requiring gun owners to register with the federal government.
  • 92.0% oppose a federal law banning the sale of firearms between private citizens.
  • 82.3% of members are in favor of a program that would place armed security professionals in every school.

Centers for Disease Control (CDC) gun research and gun control[edit]

In 1996, Congress added language to the relevant appropriations bill which required "none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control."[79] This language was added to prevent the funding of research by the CDC that gun rights supporters considered politically motivated and intended to bring about further gun control legislation. In particular, the NRA and other gun rights proponents objected to work supported by the National Center for Injury Prevention and Control, then run by Mark Rosenberg, including research authored by Arthur Kellermann.[80][81][82]

The language has been carried forward and appears in the fiscal year 2012 appropriations bill,[83] and also in the draft for the fiscal year 2013 appropriations bill.[84][85] However, the Obama administration's legal analysis, "concludes such research is not prohibited by any appropriations language."[63][86]

Though gun control is not strictly a partisan issue, there is generally more support for gun control legislation in the Democratic Party than in the Republican Party.[87] The Libertarian Party, whose campaign platforms favor limited government, is outspokenly against gun control.[88]

Political arguments[edit]

Political arguments about gun rights primarily fall under two related questions:

  1. Does the government have the authority to impose gun regulations?
  2. If so, should the government regulate guns?[1]:1

These questions raise many issues about the rights of individuals and of groups, as well as about the wisdom and effectiveness of public policy.

Rights-based opinions[edit]

Rights-based opinions involve the most fundamental question about gun control: whether or to what degree the government has the authority to regulate guns.

Fundamental right[edit]

The primary author of the United States Bill of Rights, James Madison, considered the listed rights — including a right to keep and bear arms — to be "fundamental" maxims. In 1788, he wrote: “The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.”[89][90]

The view that gun ownership is a fundamental right was affirmed by the U.S. Supreme Court in District of Columbia v. Heller (2008). The Court stated: "By the time of the founding, the right to have arms had become fundamental for English subjects."[91] The Court observed that the English Bill of Rights of 1689 had listed a right to arms as one of the fundamental rights of Englishmen.

When the Court interpreted the Fourteenth Amendment in McDonald v. Chicago (2010), it looked not so much to the founding, but to the year 1868 when the amendment was ratified, and observed that most states had provisions in their state constitutions explicitly protecting this right. The Court concluded: "It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."[92][93]

Second Amendment rights[edit]

The Second Amendment to the United States Constitution, adopted on December 15, 1791, states "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."[94] Disagreement about the Second Amendment is a touchstone of modern political debate about guns in America.

Prior to District of Columbia v. Heller, in the absence of a clear court ruling, there was a debate surrounding the question of whether or not the Second Amendment included an individual right.[95] In Heller, the Court concluded that there was indeed such a right, but not an unlimited one.[95] Although the decision was not unanimous, all justices endorsed an individual right viewpoint, but differed on the scope of that right.[96][97]

Many gun rights advocates say the Second Amendment protects an individual right to own guns. They argue that the phrase "the people" in that amendment applies to all individuals rather than an organized collective, and they state that the phrase "the people" means the same thing in the 1st, 2nd, 4th, 9th, and 10th Amendments.[98]:55–87[99][100] 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.[101][102] As part of the Heller holding, the majority endorsed the view that the Second Amendment protects an individual, but not unlimited, right to own guns. Robert Spitzer and Gregory P. Magarian argue that this final decision by the Supreme Court was a misinterpretation of the U.S. Constitution.[103][104][105]

After the Heller decision there was an increased amount of attention on whether or not the Second Amendment applies to the states. In 2010 in the case of McDonald v. Chicago, the Supreme Court ruled that the Second Amendment's provisions do apply to the states (via the Fourteenth Amendment).

People who interpret the Second Amendment as protecting broad gun rights point out that at the time of the Second Amendment's adoption in the late 18th century, the word "militia" meant "every free able-bodied white male citizen between the ages of 18 and 45".[106] 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, including additionally those under 64 having former military service experience, as well as including female citizens who are members of the National Guard.[107]

Self-defense[edit]

The eighteenth-century English jurist William Blackstone (b. 1723), who heavily influenced the drafters of the U.S. Constitution,[108] called self-defense "the primary law of nature" which (he said) man-made law cannot take away.[109] Following Blackstone, the American jurist St. George Tucker (b. 1752) wrote that "the right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible."[110] Beginning in the late twentieth-century, legal scholars have expressed renewed interest in Tucker's increasingly influential perspective.[110]

In both Heller (2008) and McDonald (2010) the Supreme Court deemed that the right of self-defense is at least partly protected by the United States Constitution. The Court left details of that protection to be worked out in future court cases.[111]

In the United States, the two major opposing interest groups regarding this issue are the Brady Campaign and the National Rifle Association.[112] They have clashed, for example, regarding stand-your-ground laws which give individuals a legal right to use guns for defending themselves without any duty to retreat from a dangerous situation.[113] After the Supreme Court's 2008 decision in Heller, the Brady Campaign indicated that it would seek reasonable gun laws “without infringing on the right of law-abiding persons to possess guns for self-defense.”[114]

Carrying pepper spray can provide a less lethal option, and police are generally equipped with it, but they also carry a gun as a last resort in the event that pepper spray or other less lethal weapons will not suffice.[115] A firearms license is required by some states to buy a gun but not to buy pepper spray or mace for self-defense, except in Massachusetts where the license is required to buy any of them.[116]

Security against tyranny[edit]

Another aspect of gun rights ideology is that banning or even regulating gun ownership makes tyranny more likely.[117] A January 2013 Rasmussen Reports poll indicated that 65 percent of Americans believe the purpose of the Second Amendment is to "ensure that people are able to protect themselves from tyranny."[118] A Gallup poll in October 2013 showed that 60 percent of American gun owners mention "personal safety/protection" as a reason for owning them, and 5 percent mention a "Second Amendment right", among other reasons.[119] The anti-tyranny argument extends back to the days of colonial America; even earlier in Great Britain, one finds the check-against-tyranny argument for gun rights.[120]

Various gun rights advocates and organizations — including Mike Huckabee,[121] Ron Paul,[122] and Gun Owners of America[123] — take the position that an armed citizenry is the population's last line of defense against tyranny by their own government. This belief was also familiar at the time the Constitution was written.[124][125] A right of revolution was omitted from the Constitution, and instead the Constitution was designed to ensure a government deriving its power from the consent of the governed.[126]

Modern proponents of the security-against-tyranny argument often claim that the Nazis could have been inhibited by a more well-armed population (that claim is controversial[nb 1]), and they often discuss a counterfactual history in which the Nazis did not disarm groups like the German Jews and other suppressed populations.[137][138][139][140] Historians have tended to not address gun regulation under the Nazis, and its significance is disputed.[130][141] According to Robert Cottrol:[141]

Could the overstretched Nazi war machine have murdered 11 million armed and resisting Europeans while also taking on the Soviet and Anglo-American armies? Could 50,000-70,000 Khmer Rouge have butchered 2-3 million armed Cambodians? These questions bear repeating. The answers are by no means clear, but it is unconscionable they are not being asked.

The Declaration of Independence mentioned "the Right of the People to alter or to abolish" the government, and Abraham Lincoln's first inaugural address reiterated the "revolutionary right" of the people.[142] In 1957, the legal scholar Roscoe Pound expressed the opposite view:[143][144]

[A] legal right of the 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.

Historian Don Higginbotham wrote that the well-regulated militia protected by the Second Amendment was more likely to put down rebellions than participate in them.[145] American gun rights activist Larry Pratt says that the anti-tyranny argument for gun rights is supported by successful efforts in Guatemala and the Philippines to arm ordinary citizens against communist insurgency in the 1980s.[146][147] Gun-rights advocacy groups argue that the only way to enforce democracy is through having the means of resistance.[98]:55–87[99][100] Militia-movement groups cite the Battle of Athens (Tennessee, 1946) as an example of citizens who "[used] armed force to support the Rule of Law" in what they said was a rigged county election.[148] On the other hand, then-senator John F. Kennedy wrote in 1960 that, "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...."[149]

Public policy theory[edit]

A second category of political theory is founded on the premise that even if the government has the authority to regulate guns, to do so may or may not be sound public policy.[150]

Gun violence debate[edit]

President Obama visiting shooting victims at University of Colorado Hospital on July 22, 2012

The public policy debates about gun violence include discussions about firearms deaths - including homicide, suicide, and unintentional deaths - as well as the impact of gun ownership, criminal and legal, on gun violence outcomes.

In the United States in 2009 there were 3.0 recorded intentional homicides committed with a firearm per 100,000 inhabitants; for comparison, the figure for the United Kingdom, with very restrictive firearm laws (handguns are totally prohibited, for example) was 0.07, about 40 times lower, and for Germany 0.2.[151] The U.S. ranks 28 in the world for gun homicides per capita.[152] From the same source, of the 107 countries where complete data was available, the U.S. ranked 41 out of 107 for total homicides per capita.

Those concerned about high levels of gun violence in the United States in comparison to other developed countries look to restrictions on gun ownership as a way to stem the violence.[153][154] 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.[155][156]

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.[157][158] They note that more people defend themselves with a gun every year than the police arrest for violent crimes and burglary[159] and that private citizens legally shoot almost as many criminals as public police officers do.[160] Some gun control organizations say that increased gun ownership leads to higher levels of crime, suicide and other negative outcomes.

Logical pitfalls[edit]

One question in the gun policy debate is, "Will restrictions on gun ownership (or, for a particular proposed law, will this restriction) cause violent crime to decrease?"[citation needed] Debate attends even this question, with some[who?] claiming that overall reduction in violent crime is the goal, while others claiming that reduction in gun-crime is a good in itself (even if replaced by equal numbers of, say, knife-crime) because of the assumed higher potential for lethality.[161]

The "gold standard" for how an intervention (such as a new law) affects a human population is the double-blinded, randomized control study. Such studies are almost never available to answer public policy questions. Current studies (see below) examining guns and violence have either tried to stratify the risk of violence based on gun ownership (determined by interview for individuals within one locale,[162] or by population statistics for international comparisons[163]) or by level of legal restriction, using either an international comparison for different levels of regulation or a historical one (i.e. how did the regional crime rate change when a new gun law was introduced there).[164]

These studies have different faults. The chief problem of the gun-ownership-as-risk-factor studies is that while they can – if well-designed – show the numerical correlation between gun-ownership and gun violence, they cannot determine whether the correlation is due to cause and effect, due to a common cause, or due to chance. John Lott uses the example of hospitals: there may be a significant degree of correlation between those who recently died and those who recently were in hospital, but that does not necessarily mean the hospital stay caused their deaths. A third factor (e.g. severe illness) may have caused both the hospitalization and the death.[165]

The internationally controlled comparisons are flawed by the fact that other international differences (such as level of illegal drug trafficking or level of civil-rights limitations on police surveillance) may overwhelm the gun-restriction or gun-ownership differences as a source of difference in violent crime rate.[166]

Similarly, the historically controlled studies may miss other trends over time (e.g. economic cycles, changes in gang presence, changes in other laws etc.) that are more important than the introduction of the studied gun law.[167]

No study can be free of all of these faults and so part of the policy debate will center on which studies are "most free" of confounding error. It must be considered, however, whenever a public policy change concerning firearms is proposed (either loosening or tightening gun restrictions) that three assumptions are being made.

First, it is assumed that the proposed law, if enforced as intended, would actually reduce overall violent crime (or simply gun-related crime, if that is the goal). Second, it is assumed that enforcement of the law as intended (that is, its application to the target population–, e.g. criminals or identifiable potential criminals– without its simply being ignored or easily circumvented by that group) can, in fact, be accomplished. Any study claiming that its data "shows" that a given law produced a given effect is simultaneously asserting that these first two assumptions were true.

Finally, as the resources to prevent violence will never be infinite, there is a third assumption: that devoting the resources to implement the new law will make more of a difference in violence prevention than simply devoting those same resources to (better?) implementation of existing laws.[168]

Relationship between criminal violence and gun ownership[edit]

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".

Photo from a security camera of shooter Aaron Alexis holding his Remington 870 shotgun during his rampage.
  • Homicide

The United States has about five percent of the total world population but residents of the United States own about 42 percent of all the world's civilian-owned firearms. In 2009, according to the UNODC, 60% of homicides in the United States were perpetrated using a firearm[169]

One area of research in the relationship between criminal violence and gun ownership is defensive gun use (DGU). Gun rights advocate John Lott says there is a positive correlation between gun control legislation and crimes in which criminals victimize law-abiding citizens. According to Lott, criminals ignore gun control laws and are effectively deterred 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.[170] 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.[167] More recent similar findings by Jens Ludwig further support John Lott statistical evidence.[171] 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.[172] He finds a small, positive effect of concealed-carry laws on adult homicide rates, but states the effect is not statistically significant.[172] 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.[173]

U.S. homicides by firearm vary widely from state to state. In 2010, the lowest homicide by firearm rates were in Vermont (.3) and New Hampshire (.4) and the highest were in the District of Columbia (16.0) and Louisiana (7.8).[174]

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.[175] The National Rifle Association regularly reprints locally-published stories of ordinary citizens whose lives were saved by their guns.

One study 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 U.K. and Japan, which have very strict gun control laws, while Israel, Canada and Switzerland at the same time have lower homicide rates and high rates of gun distribution. Dr Kleck has stated, "...cross-national comparisons do not provide a sound basis for assessing the impact of gun ownership levels on crime rates."[176] One study published in the [International Journal of Epidemiology], which found that for the year of 1998:[177]

During the one-year study period (1998), 88 649 firearm deaths were reported. Overall firearm mortality rates are five to six times higher in high-income (HI) and upper middle-income (UMI) countries in the Americas (12.72) than in Europe (2.17) or Oceania (2.57) and 95 times higher than in Asia (0.13). The rate of firearm deaths in the United States (14.24 per 100 000) exceeds that of its economic counterparts (1.76) eightfold and that of UMI countries (9.69) by a factor of 1.5. Suicide and homicide contribute equally to total firearm deaths in the US, but most firearm deaths are suicides (71%) in HI countries and homicides (72%) in UMI countries.

Similarly statistics from the United Nations Office on Drugs and Crime (UNODC) show that the number of homicides per 100,000 in the U.K. at 1.14 as of 2006, was considerably below that of the U.S. (5.62 per 100,000) in 2006, and again far below the rate of homicides in the U.S. specifically using a firearm (3.36 per 100,000 people) in the same year.[169] The U.K. rate of homicide was also below that of Canada in 2006 (1.86 per 100,000).[169] However, the UNODC statistics from the same year also show Switzerland to have a homicide rate of 0.8 per 100,000, again indicating the difficulties of direct international comparisons.

In a New England Journal of Medicine article, Arthur Kellermann found that people who keep a gun at home increase their risk of homicide.[162] Florida State University professor Gary Kleck disagrees with the journal authors' interpretation of the evidence and he notes 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.[175] It was later discovered[according to whom?] that Kellermann's own data indicated that no more than 1.7% of the homicides committed in the counties he studied were committed with a gun kept in the victim's home. Thus, victim gun ownership could not have had more than a negligible effect in elevating the risk of being murdered.[178] Similarly, Dave Kopel, writing in National Review, criticized Kellermann's study.[179] Researchers John Lott, Gary Kleck and many others still dispute Kellermann's work.[180][181][182][183][184] Kellerman's work has also been 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.[164][185][186] Kellermann responded to similar criticisms of the data behind his study in a letter to the New England Journal of Medicine, amending his original claim to reflect that "sixty-two percent of this group reported that the victim lived in a home where one or more guns were kept" instead of the original ninety-three, which does not change the validity of his original assertion.[187] Finally, another argument cited by academics researching gun violence points to the positive correlation between guns in the home and an already violent neighborhood. Lott's results suggest that only 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 who do not possess the means to match an increase in force. Lott's data comes from the FBI's massive crime statistics from all 3,054 U.S. counties.[188] Other scholars, such as Gary Kleck, dispute Lott's findings, arguing that there is no evidence that total rates of gun carrying (legal and illegal) actually increased after Right-to-Carry laws made it easier to get a carry permit, or that criminals' perceptions of crime as risky increased after the laws were passed.[189] While criticizing Lott's theories as 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.[190] 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.[157][158]

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 asserts that the case for gun control is a strong one based on the relationship he finds (contrary to most other researchers) between lower crime rates and gun control.[191]

Firearms are also the most common method of suicide, accounting for 53.7% of all suicides committed in the United States in 2003.[192] Most research has nevertheless found no relationship between gun availability and suicide rates, suggesting that other suicide methods, such as hanging, can usually be substituted for shooting.[193]

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."[5] They go on to state "a finding of insufficient evidence to determine effectiveness should not be interpreted as evidence of ineffectiveness but rather as an indicator that additional research is needed before an intervention can be evaluated for its effectiveness."

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

Public Health Law Research[edit]

Public Health Law Research,[194] an independent organization, published in 2009 several evidence briefs summarizing the research assessing the effect of a specific law or policy on public health, that concern the effectiveness of various laws related to gun safety.

There is not enough evidence to establish the effectiveness of "shall issue" laws, as distinct from "may issue" laws, as a public health intervention to reduce violent crime.[195]

There is insufficient evidence to determine the effectiveness of waiting period laws as public health interventions aimed at preventing gun-related violence and suicide.[196]

Although child access prevention laws may represent a promising intervention for reducing gun-related morbidity and mortality among children, there is currently insufficient evidence to validate their effectiveness as a public health intervention aimed at reducing gun-related harms.[197]

There is insufficient evidence to establish the effectiveness of such bans as public health interventions aimed at reducing gun-related harms.[198]

There is insufficient evidence to validate the effectiveness of firearm licensing and registration requirements as legal interventions aimed a reducing fire-arm related harms.[199]

Courts and the law[edit]

Supreme Court decisions[edit]

Since the late 19th 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 Congress, and not the States, in the regulation of guns.[200] Scholars predicted that the Court's incorporation of other rights suggests that they may incorporate the Second, should a suitable case come before them.[201]

"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.[202]

Until recently, there had been only one modern U.S. Supreme Court case that dealt directly with the Second Amendment, United States v. Miller.[203] In that case, the 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."[201] 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 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 Court to argue the case. The Court only heard argument from the federal prosecutor. In its ruling, the Court overturned the trial court and upheld the law.[204]

District of Columbia v. Heller[edit]

On June 26, 2008, in District of Columbia v. Heller,[205] the U.S. Supreme Court affirmed, by a 5-4 vote, the decision of the D.C. Circuit Court of Appeals.[206] This decision struck down the D.C. gun law. It also clarifies the scope of the Second Amendment to the United States Constitution, stating that it stipulates an individual right irrespective of membership in a militia. The majority opinion allowed that, like other rights, the right to bear arms is not "unlimited".[207]

"2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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."

The dissenting justices said that the majority had broken established precedent on the Second Amendment,[208] and took the position that the Amendment refers to an individual right, but in the context of militia service.[96][97][209][210]

McDonald v. Chicago[edit]

June 28, 2010, Chicago gun control law struck down 5 to 4. Ruling that "The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States." which incorporated the Second Amendment against the states.

Gun laws[edit]

Mall of America sign giving notice that state law allows private establishments to prohibit guns on the premises.

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.[211] A study published in the American Journal of Preventive Medicine notes 300 federal and state laws regarding the manufacture, design, sale, purchase, or possession of guns.[212]

State constitutions[edit]

Each of the fifty states has its own 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.[nb 2] 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,[213] while North Carolina and South Carolina begin with the same but continue with an injunction against maintaining standing armies.[214][215] 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".[216] 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".[217]

The majority of the remaining states' constitutions differ from the text of the United States Constitution primarily in their clarification of exactly 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",[216][218] while the other fifteen refer to the right as belonging to "every citizen",[219] "all individuals",[220] "all persons",[221] or another, very similar phrase.[nb 3] 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 defense",[234][235][236] while Virginia's constitution explicitly indicates that the right is derived from the need for a militia to defend the state.[237]

Most state constitutions go on to enumerate one or more appropriate reasons for the keeping of arms. Twenty-four states include self-defense as a valid, protected use of arms;[nb 4] twenty-eight cite defense of the state as a proper purpose.[nb 5] Ten states extend the right to defense of home and/or property,[nb 6] five include the defense of family,[nb 7] and six add hunting and recreation.[nb 8] 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".[238] 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 black-powder handgun.[239] Illinois prefaces the right by indicating that it is "[s]ubject...to the police power".[229] 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.[nb 9]

Federal laws[edit]

At the federal level, fully automatic weapons, short barrel shotguns, and short barrel rifles 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 and prohibits transfers to minors. 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 with the Brady Handgun Violence Prevention Act, 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.

The 1994 Violent Crime Control and Law Enforcement Act enacted the now-defunct Federal Assault Weapons Ban, which banned the purchase, sale, or transfer of any weapon specifically named in the act, other weapons with a certain number of cosmetic features, and detachable magazines capable of holding more than 10 rounds of ammunition, that had been manufactured after the beginning date of the ban. The Assault Weapons Ban expired in 2004, but H.R. 6257 introduced June 12, 2008 sought to re-instate the ban indefinitely and to expand the list of banned weapons. The bill died in committee. New York, California, Massachusetts, Hawaii, Connecticut, and New Jersey and several municipalities have codified some provisions of the expired Federal ban into State and local laws.

The Gun-Free School Zones Act of 1990 severely limited where a person may legally carry a firearm, although this was voided by United States v. Lopez as exceeding Congress' Commerce Clause authority.[240] The act was passed again in its current form in 1995. The act makes it generally unlawful for an armed citizen to travel on any public sidewalk, road, or highway, that passes within one thousand (1000) feet of the property line of any K-12 school in the nation. Only if one has a state permit to carry a firearm are they exempt from the one-thousand foot rule. In which case, depending on the laws of the individual states, full access to the schools is lawful under the Act. "(B) Subparagraph (A) does not apply to the possession of a firearm— ...(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located"

See also[edit]

Notes[edit]

  1. ^ In response to arguments that German gun control laws were an enabling factor in The Holocaust, that prevented Jews and other victims from implementing an effective resistance,[127][128][129] writers such as Bernard Harcourt agree that gun laws and regulations were used in the genocide of the Jews,[130] but argue that the prior levels of gun ownership were not high enough to enable significant resistance,[131][132] and that confiscation was a minor and incidental piece of the actions perpetrated by the Nazis. Gun control activists further argue that the use of Nazi allusions by gun rights activists is meant to raise undue fear about modern disarmament and "throw a scare into gun owners in order to rally them to the side of the NRA", and groups such as the Anti-Defamation League also say that use of the Holocaust in these arguments is offensive to the victims of the Nazis.[133][134] However, not all Jews feel that way.[135][136]
  2. ^ The constitutions of the states of California, Iowa, Maryland, Minnesota, Nebraska, New Jersey, and New York contain no specific mention of the keeping or bearing of arms in any regard.
  3. ^ The right to keep and bear arms is said to belong to "every citizen" by the constitutions of Alabama,[219] Connecticut,[222] Maine,[223] Mississippi,[224] Missouri,[225] Nevada,[226] and Texas;[227] to the "individual citizen" by Arizona,[228] Illinois,[229] and Washington;[230] and to a unique but very similar variant therof by Louisiana ("every citizen,"[231]) Michigan ("every person,"[232]) Montana ("any person,"[233]) New Hampshire ("all persons,"[221]) and North Dakota ("all individuals."[220])
  4. ^ Defense of one's self is listed as a valid purpose for the keeping and bearing of arms by the constitutions of the states of Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Indiana, Kentucky, Michigan, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming.
  5. ^ The defense of the state or simply the common defense is indicated to be a proper purpose for keeping and bearing arms by the constitutions of the states of Alabama, Arkansas, Arizona, Colorado, Connecticut, Delaware, Florida, Indiana, Kentucky, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.
  6. ^ Defense of one's home and/or property is included as a protected purpose for the keeping and bearing of arms by the constitutions of the states of Colorado, Delaware, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Oklahoma, Utah, and West Virginia.
  7. ^ The defense of one's family is listed as a valid reason for keeping and bearing arms by the constitutions of the states of Delaware, New Hampshire, North Dakota, Utah (which includes both family and "others,"[218]) and West Virginia.
  8. ^ Hunting and recreation are included in the state constitutional provision for the right of keeping and bearing arms by the states of Delaware, Nevada, New Mexico, North Dakota, West Virginia, and Wisconsin.
  9. ^ The scope of the state constitutional right to keep and bear arms is limited by the states of Colorado, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Montana, New Mexico, and North Carolina as to allow the regulation or prohibition of the carrying of concealed weapons; the constitutions of Florida, Georgia, Oklahoma, Tennessee, and Texas allow for regulations on the carrying or wearing of arms in general.

References[edit]

  1. ^ a b c d e f g h Spitzer, Robert J. (2012). "Policy Definition and Gun Control". The Politics of Gun Control. Boulder, Colorado: Paradigm. ISBN 9781594519871. OCLC 714715262. 
  2. ^ Bruce, John M.; Wilcox, Clyde (1998). "Introduction". In Bruce, John M.; Wilcox, Clyde. The Changing Politics of Gun Control. Lanham, Maryland: Rowman & Littlefield. ISBN 0-8476-8615-9. OCLC 833118449. 
  3. ^ a b Spitzer, Robert J. (1995). The Politics of Gun Control. Chatham House. ISBN 9781566430227. 
  4. ^ Levan, Kristine (2013). "4 Guns and Crime: Crime Facilitation Versus Crime Prevention". In Mackey, David A.; Levan, Kristine. Crime Prevention. Jones & Bartlett. p. 438. ISBN 9781449615932. "They [the NRA] promote the use of firearms for self-defense, hunting, and sporting activities, and also promote firearm safety." 
  5. ^ a b c "First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws. Findings from the Task Force on Community Preventive Services.". MMWR (Atlanta, Georgia: Centers for Disease Control and Prevention) 52 (RR-14): 11–20. October 3, 2003. ISSN 1057-5987. 
  6. ^ Halbrook, Stephen P. (1984). That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque, New Mexico: University of New Mexico Press. ISBN 0-945999-28-3. 
  7. ^ Anderson, Jervis (1984). Guns in American Life. Random House. ISBN 9780394535982. 
  8. ^ a b Reynolds, Bart (September 6, 2006). "Primary Documents Relating to the Seizure of Powder at Williamsburg, VA, April 21, 1775". revwar75.com (transcription, amateur?). Horseshoe Bay, Texas: John Robertson. Retrieved November 21, 2010. 
  9. ^ Revere, Paul (1961). Paul Revere's Three Accounts of His Famous Ride. Edmund S. Morgan (introduction). Boston: Massachusetts Historical Society. ISBN 978-0-9619999-0-2. OCLC 450449. 
  10. ^ Willis, Garry (1999). A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster. OCLC 41606289. 
  11. ^ Cornell, Saul (2006). A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. ISBN 978-0-19-514786-5. OCLC 62741396. 
  12. ^ Bliss v. Commonwealth, 2 Littell 90 (KY 1822).
  13. ^ United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Govt. Print. Off, 1967, p. 246.
  14. ^ Pierce, Darell R. (1982). "Second Amendment Survey". Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980's 10 (1): 155–162. 
  15. ^ Two states, Alaska and Vermont, do not require a permit or license for carrying a concealed weapon to this day, following Kentucky's original position.
  16. ^ a b State v. Buzzard, 4 Ark. (2 Pike) 18 (1842).
  17. ^ Cornell, Saul (2006). A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 188. ISBN 978-0-19-514786-5. "Dillon endorsed Bishop's view that Buzzard's "Arkansas doctrine," not the libertarian views exhibited in Bliss, captured the dominant strain of American legal thinking on this question." 
  18. ^ Kerrigan, Robert (June 2006). The Second Amendment and related Fourteenth Amendment (PDF). 
  19. ^ Amar, Akhil Reed (1992). "The Bill of Rights and the Fourteenth Amendment". Yale Law Journal. Faculty Scholarship (Yale Law School) 101: 1193–1284. 
  20. ^ Boston T. Party (Kenneth W. Royce) (1998). Boston on Guns & Courage. Javelin Press. pp. 3:15. 
  21. ^ Brian Knight (September 2011). "State Gun Policy and Cross-State Externalities: Evidence from Crime Gun Tracing". Providence RI. 
  22. ^ Crothers, Lane (2003). Rage on the Right: The American Militia Movement from Ruby Ridge to Homeland Security. Lanham, Maryland: Rowman & Littlefield. p. 97. ISBN 9780742525474. OCLC 50630498. 
  23. ^ Thomas, David C. (2000). Canada and the United States: Differences that Count, Second Edition. Peterborough, Ontario: Broadview Press. p. 71. ISBN 1-55111-252-3. 
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  200. ^ See U.S. v. Cruikshank 92 U.S. 542 (1876), Presser v. Illinois 116 U.S. 252 (1886), Miller v. Texas 153 U.S. 535 (1894)
  201. ^ a b Levinson, Sanford: The Embarrassing Second Amendment, 99 Yale L.J. 637-659 (1989)
  202. ^ Burger, Warren E., Chief Justice of the United States (1969-86): Parade Magazine, January 14, 1990, pages 4-6
  203. ^ "United States v. Miller, 307 U.S. 174 (1939)". Law.cornell.edu. Retrieved 2010-11-21. 
  204. ^ "Telling Miller's Tale", Reynolds, Glenn Harlan and Denning, Brannon P.
  205. ^ case no. 07-290
  206. ^ This is the case decided by the United States Court of Appeals for the District of Columbia Circuit as Parker v. District of Columbia. See also District of Columbia v. Heller for more information about this landmark U.S. Sup. Ct. decision.
  207. ^ DISTRICT OF COLUMBIA ET AL. v. HELLER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 07–290. Argued March 18, 2008 (PDF). June 26, 2008. p. 2, section 2. Retrieved 25 February 2013. 
  208. ^ Linda Greenhouse (2008-06-27). "Justices Rule for Individual Gun Rights". The New York Times. Retrieved 2008-06-27. 
  209. ^ Bennett, R.; Solum, L. (2011). Constitutional originalism : A Debate. Ithaca, N.Y: Cornell University Press. p. 29. ISBN 9780801447938. "In both dissents, the clear implication is that if the purpose of the Second Amendment is militia—related, it follows that the amendment does not create a legal rule that protects an individual right to possess and carry fire arms outside the context of service in a state militia." 
  210. ^ Schultz, D. A. (2009). Encyclopedia of the United States Constitution. New York: Infobase Publishing. p. 201. ISBN 9781438126777. "Justice John Paul Stevens argued that the debate over the Second Amendment was not whether it protected an individual or collective right but, instead, over the scope of the right to bear arms." 
  211. ^ Spitzer, Robert J.: The Politics of Gun Control, page 1. Chatham House Publishers, Inc., 1995
  212. ^ American Journal of Preventive Medicine, Volume 28, Issue 2, Pages 40-71 R. Hahn, O. Bilukha, A. Crosby, M. Fullilove, A. Liberman, E. Moscicki, S. Snyder, F. Tuma, P. Briss
  213. ^ Hawaii State Constitution Article 1, § 17
  214. ^ North Carolina State Constitution Article 1, § 30
  215. ^ South Carolina State Constitution Article 1, § 20
  216. ^ a b Alaska State Constitution Article 1, § 19
  217. ^ Rhode Island State Constitution Article 1, § 22
  218. ^ a b Utah State Constitution Article 1, § 6
  219. ^ a b Alabama State Constitution Article 1, § 26
  220. ^ a b North Dakota State Constitution Article 1, § 1 (PDF)
  221. ^ a b New Hampshire State Constitution Part 1, Article 2-a
  222. ^ Connecticut State Constitution Article 1, § 15
  223. ^ Maine State Constitution Article 1, § 16
  224. ^ Mississippi State Constitution Article 3, § 12
  225. ^ Missouri State Constitution Article 1, § 23
  226. ^ Nevada State Constitution Article 1, § 11
  227. ^ Texas State Constitution, Article 1, § 23
  228. ^ Arizona State Constitution Article 2, § 26
  229. ^ a b Illinois State Constitution Article 1, § 22
  230. ^ Washington State Constitution Article 1, § 24
  231. ^ Louisiana State Constitution Article 1, § 11
  232. ^ Michigan State Constitution Article 1, § 6 (PDF)
  233. ^ Montana State Constitution Article 2, § 12
  234. ^ Arkansas State Constitution Article 2, § 5
  235. ^ Massachusetts State Constitution Article 17
  236. ^ Tennessee State Constitution Article 1, § 26 (PDF)
  237. ^ Virginia State Constitution Article 1, § 13
  238. ^ Idaho State Constitution Article 1, § 11
  239. ^ Florida State Constitution Article 1, § 8
  240. ^ "UNITED STATES v. LOPEZ, ___ U.S. ___ (1995)". FindLaw. Retrieved 2012-04-05. 

Further reading[edit]

  • Brennan, Pauline Gasdow, Alan J. Lizotte, and David McDowall. "Guns, Southernness, and Gun Control". Journal of Quantitative Criminology 9, no. 3 (1993): 289–307.
  • Bruce, John M., and Clyde Wilcox, eds. The Changing Politics of Gun Control. Lanham, Maryland: Rowman and Littlefield, 1998. ISBN 0-8476-8614-0, ISBN 0-8476-8615-9.
  • Carter, Gregg Lee, ed. Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law (3rd ed. 2012) excepr and text search
  • Carter, Gregg Lee. Gun Control in the United States: A Reference Handbook (2006) 408pp
  • Davidson, Osha Gray. Under Fire: The NRA and the Battle for Gun Control, 2nd ed. Iowa City: University of Iowa Press, 1998. ISBN 0-87745-646-1.
  • Edel, Wilbur. Gun Control: Threat to Liberty or Defense against Anarchy? Westport, Conn.: Praeger Publishers, 1995. ISBN 0-275-95145-6.
  • Goss, Kristin A. Disarmed: The Missing Movement for Gun Control in America (Priceton Studies in American Politics) (2008)excerpt and text search

External links[edit]

Gun control advocacy groups:

Gun rights advocacy groups: