The
Second Amendment has become the object of controversial overreactions .This
debate arises whenever homicides or massacres are committed using firearms. One
issue being discussed is whether the Second Amendment recognizes the right of
each citizen to keep and bear arms, or whether the right belongs solely to
state governments to maintain a military force. In both cases the actual
situation appeals to an open debate about the necessity to implement firearms
purchase and possession regulations.
To
understand the origins of second amendment, we have to go back to the
historical context. During the 18th century, the population believed
the greatest danger to this new nation was tyrannical government and that the
ultimate check on tyranny was an armed population. The check on all government,
not simply the federal government, was the armed population, the militia.
Government would not be accorded the power to create a select militia since
such a body would become the government's instrument. The whole of the
population would comprise the militia. The common public purpose of preserving
freedom would be served by protecting each individual's right to arms.
However,
the founding fathers had different interpretation according to Pr. David E.
Vandercoy (Valparaiso University School of Law). Having been oppressed by a
professional army, the founding fathers of the United States had no use for
establishing one of their own. Instead, they decided that an armed citizen
makes the best army of all. General George Washington created a
"well-regulated militia," which would consist of every able- man in
the country.
The
text of amendment was: “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.”
This
amendment text leads to two predominant interpretations of the Second
Amendment:
1.The
civilian militia interpretation, which holds that the Second Amendment is no
longer valid, having been intended to protect a militia system that is no
longer in place.
2.
The individual rights interpretation, which holds that the individual right to
bear arms is a basic right on the same order as the right to free speech.
The
advocates of the second interpretation are concentrating their arguments in the
second part of the amendment text: “the right of the people to keep and bear arms
shall not be infringed.” For them the individual right to bear arms is a basic
right on the same order as the right to free speech. This interpretation is
widely mediatized by the powerful US Firearms Industry. In addition to lobbying
for the Second Amendment in courtrooms and legislative chambers, The US
Firearms Industry has made gun rights education a crucial role in its mission.
The main reason behind this unconditional support is profit. According to CBS
resource library, the industry produces about 3 million guns per year: 620,000
pistols; 320,000 revolvers; 1,300,000 rifles; 700,000 shotguns and about 60,000 machine guns
are made with a combined Annual Revenue of $2 Billion. No doubt the issue of
individual right to bear arms is a priority to them far from any other reasonable
interpretation.
The
concern we should express; Now that the United States is protected by a
trained, volunteer military force rather than a civilian militia, is the Second
Amendment still valid?
According
to the historian Carl T. Bogus, the well-regulated militia referred to in the
Second Amendment was, in fact, the 18th century equivalent to the
U.S. Armed Forces. The United States that existed at the time the Second
Amendment was proposed had no professional, trained army. Instead, it relied
almost exclusively on civilian militias for self-defense-in other words, all
available men between the ages of 18 and 50. In the event of foreign invasion,
there would be no trained military force to hold back the British or the
French. The United States relied on the power of its own citizens to defend the
country against attack. This began to change with the presidency of John Adams,
who established a professional navy to protect U.S.-bound trade vessels from
privateers. Today, the U.S. Army is made up of a mix of full-time and part-time
professional soldiers who are trained well, and compensated for their service.
Does
the second clause of the Second Amendment still apply even if the first clause,
providing its rationale, is no longer meaningful?
We
are actually leaving in a modern society where the rights of every one are
protected by laws and institutions. We are no longer at risk of foreign
invasion and even if it’s the case we have a well-trained army. Therefore, the
Second Amendment doesn’t apply anymore. Some will argue that we have the right
to defend our homes and families against any possible threat using fire arms,
it’s a fact. However, this right is not protected by constitution because it’s
not a part of the Second Amendment. Now that we put the right to bear arms in
the right context, we can discuss the way to regulate or forbid the use of fire
arms. Being a society where the bear of arms is traditionally implemented,
banning the sale of arms will not be reasonable. The firearms and ammunition
industry has a significant economic impact, in 2009 they created more than
183,424 Jobs. The most reasonable regulations will be imposing a purchase ban of
fire arms to recidivist criminals or anyone found guilty of crime. A procedure
that should be implemented by firearms dealers who will have access to a data
base directly connected to the FBI web site .Another propositions will be to
impose a minimal age for gun purchase. In Virginia, for example, alcoholic
beverages may not be sold to persons under 21, and identification must be
required. A final proposition will be to create an agency to crack down on the
black market of arms sale. The government will declare a war to this kind of
practice like he did when we start fighting the drug cartels.
The
Second Amendment will remain a controversial subject due mainly to the
different lectures of its meaning. The incapacity of Supreme Court to take any
clear position by treating it as a sacred text doesn’t enrich the debate. Finally,
I remained you that George Washington
suggested once: "Individuals entering into society, must give up a share
of liberty to preserve the rest. The magnitude of the sacrifice must depend as
well on situation and circumstance, as on the object to be obtained."
References
Akhil Reed Amar,
The Second Amendment: A Case Study in Constitutional Interpretation, 2001 Utah
L. Rev. 889 (2001).
Christopher A.
Chrisman, Mind the Gap: The Missing Standard of Review Under the Second
Amendment (and Where to Find It), 4 Geo. J. L. & Pub. Pol’y 289 (2006).
Robert H.
Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in
Early America: The Legal Context of the Second Amendment, 25 Law & Hist.
Rev. 139 (2007).
Saul Cornell,
Commonplace or Anachronism: The Standard Model, the Second Amendment, and the
Problem of History in Contemporary Constitutional Theory, 16 Const. Comment.
221 (1999).
Lawrence Delbert
Cress, An Armed Community: The Origin and Meaning of the Right to Bear Arms, 71
J. Am. Hist. 22 (1984).
Robert Dowlut, The
Right To Keep And Bear Arms: A Right To Self-Defense Against Criminals And
Despots, 8(1) Stan. L. & Pol’y Rev. 25 (Winter 1997).
Daniel A. Farber,
Disarmed By Time: The Second Amendment and the Failure of Originalism, 76
Chi.-Kent L. Rev. 167 (2000).