Should The United States Impose Gun Control?
Any discussion of gun control should begin with a review of the Second Amendment to the United States Constitution.
The Second Amendment
The Second Amendment of the United States Constitution reads: "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." Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.
In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.
This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Heller challenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purchase. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purchases as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.
Thus, the Supreme Court has revitalized the Second Amendment. The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521). The plaintiff inMcDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.
However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment. (see foot note #1)
Assault rifles vs. Assault weapons
The issue of gun control in the United States may focus on banning of assault rifles and assault type weapons. It does not appear that the Second Amendment guarantees the right of private citizens to possess assault rifles or assault weapons. In United States politics and law, an assault weapon is a variety of semi-automatic firearms that have certain features generally associated with military firearms, including assault rifles. The 1994 Federal Assault Weapons Ban, which expired on September 13, 2004, codified the definition of an assault weapon. It defined the rifle type of assault weapon as a semiautomatic firearm with the ability to accept a detachable magazine and two or more of the following:
-a folding or telescoping stock
-a pistol grip that protrudes conspicuously beneath the action of the weapon
-a bayonet mount
-a flash suppressor or threaded barrel designed to accommodate a flash suppressor
-a grenade launcher
The assault weapons ban did not restrict weapons capable of fully automatic fire, such as assault rifles and machine guns, which have been continuously and heavily regulated since the National Firearms Act of 1934 was passed.
Subsequent laws such as the Gun Control Act of 1968 and the Firearm Owners Protection Act of 1986 also affected the importation and civilian ownership of fully automatic firearms, the latter fully prohibiting sales of newly manufactured machine guns to non-law enforcement or SOT (special occupational taxpayer) dealers
In a strict definition, a firearm must have at least the following characteristics to be considered an assault rifle:
-It must be an individual weapon with provision to fire from the shoulder (i.e. a buttstock);
-It must be capable of selective fire;
-It must have an intermediate-power cartridge: more power than a pistol but less than a standard rifle or battle rifle;
-Its ammunition must be supplied from a detachable magazine rather than a feed-belt.
-And it should at least have a firing range of 300 meters (1000 feet)
Rifles that meet most of these criteria, but not all, are technically not assault rifles despite frequently being considered as such. For example, semi-automatic-only rifles like the AR-15 (which the M16 rifle is based on) that share designs with assault rifles are not assault rifles, as they are not capable of switching to automatic fire and thus are not selective fire capable. Belt-fed weapons or rifles with fixed magazines are likewise not assault rifles because they do not have detachable box magazines.
The term "assault rifle" is often more loosely used for commercial or political reasons to include other types of arms, particularly arms that fall under a strict definition of the battle rifle, or semi-automatic variant of military rifles such as AR-15s. The US Army defines assault rifles as "short, compact, selective-fire weapons that fire a cartridge intermediate in power between submachinegun and rifle cartridges."
(1) Second Amendment discussion Cornell University law school
(2) Wikipedia - definitions of assault rifles and assault weapons
For more information or for a free consultation, contact Scott and Fenderson, PA Injury and Family Law Attorneys, by calling 727-321-0099 or view our web site www.scottandfenderson.com
Comments