Second Amendment

History

• 1791
|

Ratification & the Founder’s Vision for the Second Amendment

The Founding Fathers ratified the Second Amendment in 1791, ensuring citizens could protect themselves against a potentially tyrannical government.

• 1986
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The Firearm Owners Protection Act

In 1986, President Reagan signed the Firearm Owners Protection Act, loosening federal gun regulations.

• 1938
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Federal Firearms Act

The Federal Firearms Act (FFA) created a federal licensing system for the manufacture, import, and sale of firearms.

• 1934
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National Firearms Act

In response to rampant gun violence throughout the Prohibition era, Congress passed the National Firearms Act, imposing stricter gun regulations.

Introduction

Legal disputes surrounding the Second Amendment are dependent on the legal theory of the justice presiding over the case. The Supreme Court is constantly hearing new cases that will test the efficacy and legality of gun restrictions.

Legal Origin

The legal implications of the Second Amendment are evident in court decisions like District of Columbia v. Heller and United States v. Miller. Courts are typically asked to review the constitutionality of a law or an accused infringement of the law. Hence, the constitutionality related to gun law cases largely depends on the presiding judge and their interpretation of the Second Amendment. The clause is generally split into two parts:

1. “A well regulated Militia, being necessary to the security of a free State” and
2. “the right of the people to keep and bear Arms shall not be infringed.”

The Public Discourse

The wording of the Second Amendment is hotly debated in the judicial system and can vary by court case. The presiding judges can also potentially have different interpretations of the wording, so it is important to acknowledge that there is no explicit right or wrong way to interpret the Amendment. The courts’ job is to interpret laws to ensure that the government can execute a middle ground of political sides between an orderly society while also refraining from infringing individual rights. Within the Court, there are four theories of legal interpretation:

1. Originalism: Belief that the Constitution should be interpreted at the time that the Framers drafted the document. What was the original intent of the writing?
2. Textualism: Examines what the exact text dictates. What did the words mean at the time they were written?
3. Pragmatism: Through examining the case facts in a modern setting, Pragmatists consider the consequences of various outcomes and seek to provide a solution that would lead to the least negative impact.
4. Stare Decisis: Latin for “let the decision stand” followers of stare decisis look to previous cases for guidance on deciding future cases.

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In terms of Second Amendment interpretation, originalists and textualists will lean towards reading the original intent of the Amendment as, “firearms are needed for protection and work as a check of power against a potentially tyrannical federal government.” On the other hand, pragmatists will look at the consequences of unrestricted ownership of, for example, tanks or artillery, and read the original intent as the state’s capability of maintaining a militia. Those who follow stare decisis will look towards past cases like D.C. v. Heller to inform future decisions on the Second Amendment.

Riverside County Gun Owners

In April 2021, the Supreme Court agreed to hear a significant case regarding gun rights and the Second Amendment: New York State Rifle & Pistol Association Inc. v. Corlett - renamed New York Rifle & Pistol Association Inc. v. Bruen. Robert Nash and Brandon Koch challenged a New York state law that requires a specific reason to carry a concealed firearm with a license in public. The district court and Court of Appeals for the Second Circuit both dismissed their cases. However, the Supreme Court granted certiorari on April 26, 2021, and heard the case in November 2021. The plaintiffs hoped that the Supreme Court would favor originalist and textualist thoughts on the Second Amendment, while the state of New York hopes for a pragmatist interpretation. The case questioned whether or not the state of New York could require citizens to provide a reason for possessing a firearm and whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense. The subsequent 2022 Supreme Court decision overturned many of these gun restrictions and favored the textualist view.

Assault & Semiautomatic

CANFirearm

Mass shootings that use assault weapons and lead to many casualties typically draw the most public outcry and media attention. However, most instances of gun violence use handguns. It is heavily debated whether placing a ban on assault weapons will prevent mass shootings, given that handguns are accessible to all legal buyers. Additionally, critics of assault weapon bans fear that the ambiguous definition will lead to restrictions of all modern firearms.

Assault weapons are generally defined as “specific semiautomatic firearm models that are designed to fire a high volume of ammunition in a controlled way” (refer to Terms section). That high firing rate is the basis of the primary debate: should these types of firearms be available to the public?

After the Federal Assault Weapons Ban was not renewed in 2004, no further legislation explicitly banned high-capacity magazines or military-style assault weapons. However, there has been extensive debate on whether or not a similar law should be enacted now. While most gun-related crime is carried out with a handgun (which is not considered an assault weapon), the intention of banning assault weapons is to tackle the issue of mass shootings in America; whether or not they do is up for debate. These are important facts to consider in this debate:

• Handguns are used 78% of the time in gun-related incidents.
• In 4 of the 5 deadliest mass shootings in American history, semi-automatic rifles and assault weapons were the primary choice of firearm.

Since taking office, the Biden administration pledged to take five steps to combat gun violence, one of which addresses stabilizing braces of semiautomatic weapons. The Boulder shooter used a stabilizing brace, making his firearm more accurate, stable. Using this information, the Biden administration plans to implement a rule in which it must be made clear when a “stabilizing brace effectively turns a pistol into a short-barreled rifle subject to the requirements of the National Firearms Act.” The Biden administration has included five steps to address gun violence.

Left-leaning View. A federal ban on assault weapons like the AR-15 semi-automatic weapon must be reinstated; no citizen needs to own a military-grade weapon. Banning these can reduce the number of deaths and the number of mass shootings. Implementing a federal buyback program will get assault weapons out of people’s hands.

Right-leaning View. The term “assault weapon” refers to how scary the gun looks rather than the function of the gun. An assault weapon ban is a euphemism for banning all semi-automatic gun definition and function of a gun must be properly defined, else our rights be infringed by unconstitutional restrictions.

Open Carry

Open carry laws vary by state. There are four variations of open carry laws:

1. Permissive Open Carry: Gun owners can openly carry a gun without a permit or license.
2. Licensed Open Carry: Gun owners can openly carry a gun after being issued a license to do so.
3. Anomalous Open Carry: Openly carrying a gun is lawful under state law but illegal according to local laws.
4. Non-Permissive Open Carry: Openly carrying a gun is illegal under state law and is permitted under very limited circumstances.

States are responsible for determining their open carry laws, subject to frequent changes. The United States has 21 states that allow permitless open or concealed carry, and five states changed their laws in 2021. Texas is the most recent state to establish permitless open carry laws, and it is the largest by population to do so thus far. The pace at which states are shifting towards permitless open carry may signal growing support in state legislatures for fewer gun control policies.

AP News

However, other populous states remain on the opposite end of the spectrum by prohibiting open carry, like Florida, New York, and California. Even though Florida has over 300,000 guns registered and an ownership rate of 35.30%, it has been rigid about its open carry prohibition laws. Legislators have repeatedly introduced open carry bills in the Florida state legislature, but they were all shut down in the state Senate. Similarly, in California, open carry of a loaded firearm is prohibited, regardless of if it is a handgun or long gun.

Left-leaning View. Open carry makes it difficult for the public and law enforcement officers to identify threats, especially during shootings. There is little evidence to support the claim that open carry acts as a criminal deterrent. In fact, it may present a target for criminals, creating the risk that criminals could take someone’s gun. States like Texas that allow open carry increase public anxiety and the risk of shootings.

Right-leaning View. The presence of a firearm deters criminals from committing crimes. 60% of convicted felons admitted that they avoided committing crimes when they knew the victim was armed. The question must be answered, “is it better to see who is armed or have the weapon is concealed?”

1. Explain your opinion on the Left’s narrative that military-grade weapons were intended for the well-regulated militia and not the general public.
2. How could the Supreme Court hearing more cases clarify the extent of the Second Amendment?
3. How do you personally interpret the Second Amendment?
4. List two reasons someone on the Left would be against open carry.
5. Outline your view on armed victims preventing crimes.
6. Open carry has four variations. Which variation does your state fall under?