Gun Control - Constitutional Law
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Before proceeding with my analysis of the current thought on gun control, I wish to make a few remarks regarding interpretation of the Constitution’s position on gun control.
During the 1st Congress’s House of Representative debate on what was to become the Second Amendment, Mr. Gerry stated was “apprehensive . . . that this clause would give an opportunity to the people in power to destroy the Constitution itself.” (Annals of Congress I, 750). This is the sort of threat that many believe is posed by today’s independent militia groups. (Ross, 26-7).
[Author’s 2003 Note: Click
here to read the actual Annals of Congress, as opposed to the bibliographic
citation contained in the other links on this page.]
Gerry further stated that “the use of a militia . . . is to prevent the establishment of a standing army, the bane of liberty . . . [U]nder this provision, together with their other powers, Congress could take such measures with respect to a militia as to make a standing army unnecessary.” (Annals of Congress I, 750). Later in the debate, Mr. Sherman stated that, “the States . . . will have the government of the militia, unless when called into actual service.” (Annals of Congress I, 750), meaning that the militia was fully a state organization, and the state only surrendered that authority when the militia was nationalized by Congress (Article I, Section 8) or even by the President (Article II, Section 2). This power of nationalization would make a standing army unnecessary.
The interesting thing to note about the debates is that not once is an individual right to bear arms ever mentioned, except in the context of the state militia. The entire debate focuses on the right of the states to maintain their own militias, independent of control of the federal government. This position is further articulated by Kennett and Anderson: “The right to bear amrs was not a controversy in the Constitutional Convention. The struggle centered around control of the national army and state militias.” (p. 71). “The right of citiziens to keep arms was neither admitted nor regulated. The concern was over the control of the army and the militia.” (p. 72).
It is in this latter spirit that the following federal court decisions have been made.
District Court of New York, 1981: “Regulation or
infringement of right to keep and bear arms does not violate the Second
Amendment unless the activity infringed has some reasonable relationship to
preservation or efficiency of a well-regulated militia. U.S.C.A. Const.Amend. 2.” Engblom v. Carey, 522 F.Supp. 57,
affirmed in part, reversed in part 677 F.2d 957, on remand 572 F.Supp. 44,
affirmed 724 F.2d 28.
District Court of Texas, 1982: “Injunction against a
private association’s military activities does no violence to the Second
Amendment. U.S.C.A. Const.Amend.
2.” Vietnamese Fisherman’s Ass’n v.,
Knights of the Ku Klux Klan, 543 F. Supp. 198.
District Court of Utah, 1982: “There is no absolute
constitutional right of an individual to possess a firearm. U.S.C.A. Const.Amend. 2.” Thompason v. Dereta, 549 F.Supp. 297,
appeal dismissed 709 F.2d 1343.
Court of Appeals of Ohio, 1976: “Second Amendment
guarantees a collective rather than an individual right. U.S.C.A. Const.Amend. 2.” U.S. v. Warin, 530 F.2d 103,
certiorari denied 96 S.Ct. 3168, 426 U.S. 948, 49 L.Ed.2d 1185.
Court of Appeals of Kansas, 1977: “Purpose of the
Second Amendment, guaranteeing the right of the people to keep and bear arms,
was to preserve the effectiveness and assure the continuation of the state
militia. U.S.C.A. Const.Amend. 2.” U.S. V. Oakes, 564 F.2d 384,
certiorari denied 98 S.Ct. 1493, 435 U.S. 926, 55 L.Ed.2d 521.
Court of Appeals of Illinois, 1982: “[The] Second Amendment right to keep and
bear arms is not fundamental right which state cannot regulate. U.S.C.A. Const.Amend. 2.” Quilici v. Village of Morton Grove,
695 F.2d 261, certiorari denied 104 S.Ct. 194, 464 U.S. 863, 78 L.Ed.2d 170, Stengl
v. Village of Morton Grove, 104 S.Ct. 194, 464 U.S. 863, 78 L.Ed.2d 170 and
Reichert v. Village of Morton Grove, 104 S.Ct. 194, 464 U.S. 863, 78
L.Ed.2d 170.
Further, Greenbert refers to another case, which I could not find, in which the Court of Appeals found that the handgun restriction within the boundaries of the township to be a reasonable exercise of police power. Police power is defined as “the power of the state to regulate for the health, safety, morals, and general welfare of its citizens. (Epstein and Walker, 508). It is also defined as “the power of government to protect the health, safety, welfare and morals of citizens.” (Fisher, A.22).
The above case law clearly indicates that federal courts around the country have consistently held that the Second Amendment describes no individual right to bear arms, but rather that such right is belongs to the states in their corporate, or collective, capacity. Further, the fact that the Supreme Court has declined to review several of these cases, viz., each of the three Court of Appeals cases shown above, indicates that not only has the Supreme Court found nothing objectionable in those cases, but also that the issue was not even worthy of consideration. It is this perspective which I shall carry into my analysis in the next section.