Gun politics in the United States
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|Gun politics by country|
Gun politics is a controversial area of 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.:7 It has been estimated that U.S. civilians own 270 million to 310 million firearms, and that 37% to 42% of the households in the country have at least one gun.
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, such as 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.:1–3 Gun rights supporters promote firearms for self-defense, hunting, sporting activities, and security against tyranny.: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. A 2003 study by the Centers for Disease Control called for further study because there was insufficient evidence to determine the effectiveness of firearms laws with regards to violent outcomes.
Gun legislation in the United States is constrained by judicial interpretations of the Constitution. In 1791, 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, that upheld the right for individuals to possess guns for self-defense.
- 1 History
- 1.1 Colonial era through the Civil War
- 1.2 Post Civil War
- 1.3 20th century
- 1.4 21st century
- 2 Public opinion
- 3 Political arguments
- 4 Federal and state laws
- 5 See also
- 6 Notes
- 7 References
- 8 Further reading
- 9 External links
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.: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.
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. 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.: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.: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".:21
Colonial era through the Civil War
Most American school children learn about the tyranny of King George III: taxation without representation. 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.
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.
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.":140–141
The individual right interpretation of the Second Amendment first arose in Bliss v. Commonwealth (1822), 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".
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,...":161
Also during the Jacksonian Era, the first collective right (or group right) interpretation of the Second Amendment arose. In State v. Buzzard (1842), 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", 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.
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.
|This section may require cleanup to meet Wikipedia's quality standards. The specific problem is: it is disjointed, one source is poor quality, the other is poorly used (April 2014)|
Post Civil War
With the Civil War ending, and 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.
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.
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 or 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...
First half of 20th century
Since the late 19th century, with three key cases from the pre-incorporation era, the U.S. Supreme Court consistently ruled that the Second Amendment (and the Bill of Rights) restricted only Congress, and not the States, in the regulation of guns. Scholars predicted that the Court's incorporation of other rights suggested that they may incorporate the Second, should a suitable case come before them.
National Firearms Act
The first major federal firearms law 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.
United States v. Miller
In United States v. Miller (1939) the Court did not address incorporation, but whether a sawed-off shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia." In overturning 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 Supreme Court. On appeal the federal government did not object to Miller's release since he had died by then, seeking only to have the trial judge's ruling on the unconstitutionality of the federal law overturned. Under these circumstances, neither Miller nor his attorney appeared before the 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 NFA.
Second half of 20th century
The Gun Control Act of 1968 (GCA) 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. The GCA focuses on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers, and importers. It also prohibits selling firearms to certain categories of individuals defined as "prohibited persons."
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. In an article supporting passage of such a law, retired chief justice Warren E. Burger wrote:
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.
In 1986, Congress passed the Firearm Owners Protection Act. It was supported by the National Rifle Association and individual gun rights advocates because it reversed many of the provisions of the GCA and protected gun owners' rights. It also banned ownership of unregistered fully automatic rifles and civilian purchase or sale of any such firearm made from that date forward.
A Stockton, California, schoolyard shooting in 1989 led to passage of the Federal Assault Weapons Ban of 1994 (AWB or AWB 1994), which defined and banned the manufacture and transfer of "semiautomatic assault weapons" and "large capacity ammunition feeding device"s.
According to journalist Chip Berlet, concerns about gun control laws along with outrage over two high profile incidents involving the ATF (Ruby Ridge in 1992 and the Waco siege in 1993) mobilized the militia movement of citizens who feared that the federal government would begin to confiscate firearms.
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. The Libertarian Party, whose campaign platforms favor limited government, is outspokenly against gun control.
The National Rifle Association (NRA) was founded to promote firearm competency in 1871. The NRA supported the NFA and, ultimately, the GCA. After the GCA, more strident groups, such as the Gun Owners of America (GOA), began to advocate for gun rights. According to the GOA, it was founded in 1975 when "the radical left introduced legislation to ban all handguns in California." 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 greater restrictions.:368:172
According to the authors of The Changing Politics of Gun Control (1998), in the late 1970s, the NRA changed its activities to incorporate political advocacy. Despite the impact on the volatility of membership, the politicization of the NRA has been consistent and the NRA-Political Victory Fund ranked as "one of the biggest spenders in congressional elections" as of 1998. According to the authors of The Gun Debate (2014), the NRA taking the lead on politics serves the gun industry's profitability. In particular when gun owners respond to fears of gun confiscation with increased purchases and by helping to isolate the industry from the misuse of its products used in shooting incidents.
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.:186 In the wake of the 1980 murder of John Lennon, HCI saw an increase of interest and fund raising and contributed $75,000 to congressional campaigns. Following the Reagan assassination attempt 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.
Centers for Disease Control (CDC) restriction
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." 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 L. Rosenberg, including research authored by Arthur Kellermann.
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.":14 A similar survey of firearms research by the National Academy of Sciences arrived at nearly identical conclusions in 2004. 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 Chicago, 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. The GOA took issue with a portion of the bill, which they termed the "Veterans' Disarmament Act."
Besides the GOA, other national gun rights groups continue to take a stronger stance than the NRA. These groups include 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.
District of Columbia v. Heller
In June 2008, in District of Columbia v. Heller, the Supreme Court upheld by a 5-4 vote the Parker decision striking down the D.C. gun law. Heller ruled that Americans have an individual right to possess firearms, irrespective of membership in a militia, "for traditionally lawful purposes, such as self-defense within the home." However, in delivering the majority opinion, Justice Antonin Scalia made it clear that, like other rights, the right to bear arms is limited. He wrote:
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 four dissenting justices said that the majority had broken established precedent on the Second Amendment, and took the position that the Amendment refers to an individual right, but in the context of militia service.
McDonald v. Chicago
In June 2010, a Chicago law that banned handguns was struck down. The ruling stated that "The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States."
Advocacy groups, PACs, and lobbying
One way advocacy groups influence politics is through "outside spending," using political action committees (PACs) and 501(c)(4) organizations. PACs and 501(c)(4)s raise and spend money to affect elections. PACs pool campaign contributions from members and donate those funds to candidates for political office. 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. 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, and as of April 2014, it had raised $13.7 million for 2014 elections. Michael Bloomberg's gun-control super PAC, Independence USA, spent $8.3 million in 2012 and $6.3 million in 2013. Americans for Responsible Solutions, a PAC started by retired Congresswoman Gabrielle Giffords, raised $12 million in 2013, and plans to raise $16 to $20 million by the 2014 elections. The group's treasurer said that the funds would be enough to compete with the NRA "on an even-keel basis."
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. 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. Gun control groups spent $2.2 million, with MAIG spending $1.7 million, and the Brady Campaign spending $250,000 in the same period.
3D printed firearms
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. 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.
Proposals by Obama Administration
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 large capacity magazines; making schools safer; and increasing access to mental health services.:2 The plan included proposals for new laws to be passed by Congress, and a series of executive actions not requiring Congressional approval. No new federal gun control legislation was passed as a result of these proposals. President Obama later stated in a 2015 interview with the BBC that gun control:
- "is an area where, if you ask me where has been the one area where I feel that I've been most frustrated and most stymied, it is the fact that the United States of America is the one advanced nation on earth in which we do not have sufficient common-sense, gun-safety laws. Even in the face of repeated mass killings. And you know, if you look at the number of Americans killed since 9/11 by terrorism, it's less than 100. If you look at the number that have been killed by gun violence, it's in the tens of thousands. And for us not to be able to resolve that issue has been something that is distressing. But it is not something that I intend to stop working on in the remaining 18 months".
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;
- Provide incentives for schools to hire school resource officers;
- Give law enforcement additional tools to prevent and prosecute gun crime.
In 2016, Obama made a speech about gun control, in which he called for a "sense of urgency" against gun violence.
2013 United Nations Arms Treaty
The Arms Trade Treaty (ATT) is a multilateral treaty that regulates the international trade in conventional weapons, which entered into force on December 24, 2014. 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. 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. On April 2, 2013, the UN General Assembly adopted the ATT. The treaty was opened for signing on June 3, 2013 and by August 15, 2015 it had been signed by 130 states and ratified or acceded to by 72. It entered into force on December 24, 2014 after it was ratified and acceded to by 50 states.
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 Barack 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).
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." 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." As of December 2013, the U.S. has not ratified or acceded to the treaty.
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. Similarly, a Gallup poll found that support for stricter gun laws has fallen from 58% after the Newtown shooting, to 49% in September 2013. Both the Huffington Post poll and the Gallup poll were conducted after the Washington Navy Yard shooting. 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. 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.
The Gallup organization regularly polls Americans on their views on guns. As of December 22, 2012:
- 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 magazines that can contain more than 10 rounds."
As of April 25, 2013:
- 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:
- 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:
- 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
A member poll conducted for the NRA between January 13 and 14, 2013 found:
- 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.
- 72.5% agreed that President Obama's ultimate goal is the confiscation of many firearms that are currently legal.
Place of living of respondents:
- 35.4% A rural area
- 26.4% A small town
- 22.9% A suburban area
- 14.7% An urban area or city
- 36.1% South
- 24.1% Mid-West
- 21.5% West
- 18.3% North-East / Mid-Atlantic
Rights-based arguments involve the most fundamental question about gun control: to what degree the government has the authority to regulate guns.
The primary author of the United States Bill of Rights, James Madison, considered them — including a right to keep and bear arms — to be "fundamental." 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."
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." 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 to the year 1868, when the amendment was ratified, and said that most states had provisions in their 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."
Second Amendment rights
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.
Prior to District of Columbia v. Heller, in the absence of a clear court ruling, there was debate about whether or not the Second Amendment included an individual right. In Heller, the Court concluded that there is indeed such a right, but a limited one. Although the decision was not unanimous, all justices endorsed an individual right viewpoint, but differed on the scope of that right.
Before Heller many gun rights advocates said that the Second Amendment protects an individual right to own guns. They stated that the phrase "the people" in that amendment applies to all individuals rather than an organized collective, and that the phrase "the people" means the same thing in the 1st, 2nd, 4th, 9th, and 10th Amendments.:55–87 They also said the Second's placement in the Bill of Rights defines it as an individual right. As part of the Heller decision, the majority endorsed the view that the Second Amendment protects an individual, yet limited, right to own guns. Political scientist Robert Spitzer and Supreme Court law clerk Gregory P. Magarian argue that this final decision by the Supreme Court was a misinterpretation of the U.S. Constitution.
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).
Defense of self and state
The eighteenth-century English jurist William Blackstone (b. 1723), whose writings influenced the drafters of the U.S. Constitution, called self-defense "the primary law of nature" which (he said) man-made law cannot take away. 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."
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.
The two primary interest groups regarding this issue are the Brady Campaign and the National Rifle Association. 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. 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."
Security against tyranny
Another fundamental political argument associated with the right to keep and bear arms is that banning or even regulating gun ownership makes government tyranny more likely. 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." 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. The anti-tyranny argument extends back to the days of colonial America and earlier in Great Britain.
Various gun rights advocates and organizations, such as former governor Mike Huckabee, former Congressman Ron Paul, and Gun Owners of America, say 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. 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.
Gun rights advocates such as Stephen Halbrook and Wayne LaPierre support the "Nazi gun control" theory. The theory states that gun regulations enforced by the Third Reich rendered victims of the Holocaust weak, and that more effective resistance to oppression would have been possible if they had been better armed.:484:87–8,167–8 Other authoritarian regimes gun laws have also been brought up. This counterfactual history theory is not supported by mainstream scholarship,:412,414:671,677:728 though it is an element of a "security against tyranny" argument in U.S. politics.
The Declaration of Independence mentions "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. In 1957, the legal scholar Roscoe Pound expressed a different view: He stated, "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. 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. Gun-rights advocacy groups argue that the only way to enforce democracy is through having the means of resistance.:55–87 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. 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...."
Public policy arguments
Public policy arguments are based on the idea that the central purpose of government is to establish and maintain order. This is done through public policy, which Blackstone defined as "the due regulation and domestic order of the kingdom, whereby the inhabitants of the State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations.":2–3
Gun violence debate
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. The U.S. ranks 28 in the world for gun homicides per capita.
Within the gun politics debate, gun control and gun rights advocates disagree over the role that guns play in crime. Gun control advocates concerned about high levels of gun violence in the United States look to restrictions on gun ownership as a way to stem the violence and say that increased gun ownership leads to higher levels of crime, suicide and other negative outcomes. 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. They say that more people defend themselves with a gun every year than the police arrest for violent crimes and burglary and that private citizens legally shoot almost as many criminals as public police officers do.
There is an open debate regarding a causal connection (or the lack of one) between gun control and its effect on gun 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."
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." 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."
In 2009, the Public Health Law Research program, an independent organization, published 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. Among their findings:
- 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.
- There is insufficient evidence to determine the effectiveness of waiting period laws as public health interventions aimed at preventing gun-related violence and suicide.
- 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.
- There is insufficient evidence to establish the effectiveness of such bans as public health interventions aimed at reducing gun-related harms.
- There is insufficient evidence to validate the effectiveness of firearm licensing and registration requirements as legal interventions aimed a reducing fire-arm related harms.
With 5% of the world's population, U.S. residents own roughly 50% of the world's civilian-owned firearms. According to the UNODC, 60% of U.S. homicides in 2009 were perpetrated using a firearm. U.S. homicides by firearm vary widely from state to state. In 2010, the lowest firearm homicide rates were in Vermont (0.3) and New Hampshire (0.4), and the highest were in the District of Columbia (16.0) and Louisiana (7.8).
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. Another study from the same period, the National Crime Victimization Survey (NCVS), estimated 65,000 DGUs (Defensive gun use) annually. The NCVS survey differed from Kleck's study in that it only interviewed those who reported a threatened, attempted, or completed victimization for one of six crimes: rape, robbery, assault, burglary, non-business larceny, and motor vehicle theft. A National Research Council report said that Kleck's estimates appeared to be exaggerated and that it was almost certain that "some of what respondents designate[d] as their own self-defense would be construed as aggression by others" (Understanding and Preventing Violence, 266, Albert J. Reiss, Jr. & Jeffrey A. Roth, eds., 1992).
In a survey of 41 studies half of them found a connection between gun ownership and homicide but these were usually least rigorous studies. Only six studies controlled at least six statistically significant confound variables, and none of them showed a significant positive effect. Eleven macro-level studies showed that crime rates increase gun levels (not vice versa). The reason that there is no opposite effect may be that most owners are noncriminals and that they may use guns to prevent violence.
Commenting on the external validity of Kleck's report, David Hemenway, director of the Harvard Injury Control Research Center, said: "Given the number of victims allegedly being saved with guns, it would seem natural to conclude that owning a gun substantially reduces your chances of being murdered. Yet a careful case-control study of homicide in the home found that a gun in the home was associated with an increased rather than a reduced risk of homicide. Virtually all of this risk involved homicide by a family member or intimate acquaintance.":1443 According to Kleck people who live in more dangerous circumstances are more likely to be murdered, but also were more likely to have acquired guns for self-protection.
One study found that homicide rates as a whole, especially those as a result of firearms use, are not always significantly lower in many other developed countries. Kleck wrote, "...cross-national comparisons do not provide a sound basis for assessing the impact of gun ownership levels on crime rates." One study published in the International Journal of Epidemiology, which found that for the year of 1998: "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 U.S., but most firearm deaths are suicides (71%) in HI countries and homicides (72%) in UMI countries."
"The five states with the highest per capita gun death rates in 2011 were Louisiana, Mississippi, Alaska, Wyoming, and Montana," the Violence Policy Center (VPC) said in its latest analysis of federal statistics. "Each of these states has extremely lax gun violence prevention laws as well as a higher rate of gun ownership. The state with the lowest gun death rate in the nation was Rhode Island, followed by Hawaii, Massachusetts, New York, and New Jersey. Each of these states has strong gun violence prevention laws and has a lower rate of gun ownership."
Federal and state laws
The number of federal and state gun laws is unknown. A 2005 American Journal of Preventive Medicine study says 300, and the NRA says 20,000, though the Washington Post fact checker says of that decades-old figure: "This 20,000 figure appears to be an ancient guesstimate that has hardened over the decades into a constantly repeated, never-questioned talking point. It could be lower, or higher, depending on who's counting what."
- National Firearms Act (1934)
- Omnibus Crime Control and Safe Streets Act of 1968 (1968)
- Gun Control Act of 1968 (1968)
- Firearm Owners Protection Act (1986)
- Undetectable Firearms Act (1988)
- Gun-Free School Zones Act of 1990 (1990) (ruled unconstitutional as originally written; upheld after minor edits were made by Congress)
- Brady Handgun Violence Prevention Act (1993)
- Federal Assault Weapons Ban (1994) (expired 2004)
State laws and constitutions
In addition to federal gun laws, all U.S. states and some local jurisdictions have imposed their own firearms restrictions. Each of the fifty states has its own laws regarding guns.
Forty four of the fifty US states protect the right to keep and bear arms in their state constitutions. The text of these constitutional provisions vary. For example, Hawaii's constitution simply copies the text of the Second Amendment verbatim, while North Carolina and South Carolina begin with the same but continue with an injunction against maintaining standing armies. 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". Rhode Island 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".
The majority of the remaining states' constitutions differ from the text of the U.S. 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", while the other fifteen refer to the right as belonging to "every citizen", "all individuals", "all persons", or another, very similar phrase.[nb 1] 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", while Virginia's constitution explicitly indicates that the right is derived from the need for a militia to defend the state.
Most state constitutions enumerate one or more reasons for the keeping of arms. Twenty-four states include self-defense as a valid, protected use of arms;[nb 2] twenty-eight cite defense of the state as a proper purpose.[nb 3] Ten states extend the right to defense of home and/or property,[nb 4] five include the defense of family,[nb 5] and six add hunting and recreation.[nb 6] 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". 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. Illinois prefaces the right by indicating that it is "[s]ubject...to the police power". 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 7] Forty states preempt some or all local gun laws, due in part to campaigning by the NRA for such legislation.
- Assault weapons legislation
- Concealed carry in the United States
- High-capacity magazine ban
- Gun culture in the United States
- Open carry in the United States
- One handgun a month law
- School shooting
- Campus carry in the United States
- The right to keep and bear arms is said to belong to "every citizen" by the constitutions of Alabama, Connecticut, Maine, Mississippi, Missouri, Nevada, and Texas; to the "individual citizen" by Arizona, Illinois, and Washington; and to a unique but very similar variant therof by Louisiana ("every citizen,") Michigan ("every person,") Montana ("any person,") New Hampshire ("all persons,") and North Dakota ("all individuals.")
- 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.
- 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.
- 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.
- 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,") and West Virginia.
- 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.
- 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.
- Spitzer, Robert J. (2012). "Policy Definition and Gun Control". The Politics of Gun Control. Boulder, Colorado: Paradigm. ISBN 9781594519871. OCLC 714715262.
- Desilver, Drew (June 4, 2013). "A Minority of Americans Own Guns, But Just How Many Is Unclear". Pew Research Center. Retrieved October 25, 2015.
- "Guns: Gallup Historical Trends", Gallup. Retrieved October 25, 2015.
- 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.
- Spitzer, Robert J. (1995). The Politics of Gun Control. Chatham House. ISBN 9781566430227.
- 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.
- Larry Pratt. "Firearms: the People's Liberty Teeth". Retrieved December 30, 2008.
- Lott, John. More Guns, Less Crime: Understanding Crime and Gun Control Laws (University of Chicago Press, Third edition, 2010) ISBN 978-0-226-49366-4
- Hahn, R. A.; Bilukha, O. O.; Crosby, A; Fullilove, M. T.; Liberman, A; Moscicki, E. K.; Snyder, S; Tuma, F; Briss, P; Task Force on Community Preventive Services (October 3, 2003). "First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws. Findings from the Task Force on Community Preventive Services" (PDF). MMWR (Atlanta, Georgia: Centers for Disease Control and Prevention) 52 (RR-14): 11–20. ISSN 1057-5987. PMID 14566221.
- Anderson, Jervis (1984). Guns in American Life. Random House. ISBN 9780394535982.
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- Bliss v. Commonwealth, 2 Littell 90 (KY 1822).
- United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Government Printing Office, 1967, p. 246.
- Pierce, Darell R. (1982). "Second Amendment Survey" (PDF). Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980's 10 (1): 155–162.
- 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.
- State v. Buzzard, 4 Ark. (2 Pike) 18 (1842).
- 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.
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- 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)
- Levinson, Sanford: The Embarrassing Second Amendment, 99 Yale L.J. 637-659 (1989)
- Boston T. Party (Kenneth W. Royce) (1998). Boston on Guns & Courage. Javelin Press. pp. 3:15.
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- Berlet, Chip (September 1, 2004). "Militias in the Frame". Contemporary Sociologists (American Sociological Association) 33 (5): 514–521. doi:10.1177/009430610403300506.
All four books being reviewed discuss how mobilization of the militia movement involved fears of gun control legislation coupled with anger over the deadly government mishandling of confrontations with the Weaver family at Ruby Ridge, Idaho and the Branch Davidians in Waco, Texas.
- More militia movement sources:
- Chermak, Steven M. (2002). Searching for a Demon: The Media Construction of the Militia Movement. UPNE. ISBN 9781555535414. OCLC 260103406.
[Chapter 2] describes the primary concerns of militia members and how those concerns contributed to the emergence of the militia movement prior to the Oklahoma City bombing. Two high-profile cases, the Ruby Ridge and Waco incidents, are discussed because they have elicited the anger and concern of the people involved in the movement.
- 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.
Chapter 4 examines the actions surrounding, and the political impact of, the standoff at Ruby Ridge.... Arguably, the siege... lit the match that ignited the militia movement.
- Freilich, Joshua D. (2003). American Militias: State-Level Variations in Militia Activities. LFB Scholarly. p. 18. ISBN 9781931202534. OCLC 501318483.
[Ruby Ridge and Waco] appear to have taken on a mythological significance within the cosmology of the movement....
- Gallaher, Carolyn (2003). On the Fault Line: Race, Class, and the American Patriot Movement. Lanham, Maryland: Rowman & Littlefield. p. 17. ISBN 9780742519749. OCLC 845530800.
Patriots, however, saw [the Ruby Ridge and Waco] events as the first step in the government's attempt to disarm the populace and pave the way for imminent takeover by the new world order.
- Chermak, Steven M. (2002). Searching for a Demon: The Media Construction of the Militia Movement. UPNE. ISBN 9781555535414. OCLC 260103406.
- Spitzer, Robert J.: The Politics of Gun Control, Page 16. Chatham House Publishers, Inc., 1995.
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- Lambert, Diana (1998). "Trying to Stop the Craziness of This Business: Gun Control Groups". In Bruce, John M.; Wilcox, Clyde. The Changing Politics of Gun Control. Lanham, Maryland: Rowman & Littlefield. ISBN 0-8476-8615-9. OCLC 833118449.
- Spitzer, Robert J.: The Politics of Gun Control. Chatham House Publishers, Inc., 1995
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- Williamson, Elizabeth; Schulte, Brigid (December 20, 2007). "Congress Passes Bill to Stop Mentally Ill From Getting Guns". The Washington Post (Washington, D.C.).
Congress yesterday approved legislation that would help states more quickly and accurately identify potential firearms buyers with mental health problems that disqualify them from gun ownership under federal law.... [The bill] drew overwhelming bipartisan support, and the backing of both the Brady Campaign to Prevent Gun Violence and the National Rifle Association.
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- Cooper, Matthew (January 19, 2013). "Why Liberals Should Thank Justice Scalia for Gun Control: His ruling in a key Supreme Court case leans on original intent and will let Obama push his proposals.". National Journal (National Journal Group). Retrieved January 6, 2014.
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- See "District of Columbia v. Heller: The Individual Right to Bear Arms" (PDF) (comment), Harvard Law Review, Vol. 122, pp. 141-142 (2008): "Justice Stevens filed a dissenting opinion, agreeing with the majority that the Second Amendment confers an individual right, but disagreeing as to the scope of that right….Justices Souter, Ginsburg, and Breyer joined Justice Stevens's opinion."
- Bhagwat, A. (2010). The Myth of Rights: The Purposes and Limits of Constitutional Rights. New York: Oxford University Press. pp. 16–17. ISBN 9780195377781.
Justice Stevens begins his opinion by conceding Justice Scalia's point that the Second Amendment right is an 'individual' one, in the sense that '[s]urely it protects a right that can be enforced by individuals.' He concludes, however, that all of the historical context, and all of the evidence surrounding the drafting of the Second Amendment, supports the view that the Second Amendment protects only a right to keep and bear arms in the context of militia service.
- 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.
- 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.
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As the Supreme Court made clear this past summer, judges can change the law, although there is less than consensus, even among conservatives, that Justice Antonin Scalia succeeded in making the case for the majority in Heller. Federal Judge Richard Posner (2008) opined recently that Scalia's opinion, though lengthy, 'is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.'
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For although Americans believe in an individual right to bear arms, public opinion polls have consistently shown that they favor commonsense gun restrictions as well. Thus, if the lower courts begin to get too bold and begin striking down popular gun control laws, Heller, like Lochner [v. New York], will be seen as a mistake.
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The Constitution can confer rights on individuals, as the First Amendment undeniably does, but—as First Amendment theorists frequently contend—for collectivist rather than individualist reasons.... While this Article does not contest the core holdings of Heller and McDonald that the Second Amendment confers an individual right against the federal and state governments, [I challenge] those decisions' primary justification for the Second Amendment: protection of individual self-defense.
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After Heller, the issue is: What reasonable gun laws should be passed that will make our families and communities more safe, without infringing on the right of law-abiding persons to possess guns for self-defense? This framing of the issue will move the debate from the extremes to the middle and, as such, is highly favorable to progress toward a new, sensible, national gun policy.
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Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.
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- Maine State Constitution Article 1, § 16
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- Nevada State Constitution Article 1, § 11
- Texas State Constitution, Article 1, § 23
- Arizona State Constitution Article 2, § 26
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- Washington State Constitution Article 1, § 24
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