Contextual Analysis of Gun Rights

Introduction

The American Constitution has the distinction of being one of the first modern written constitutions of the world. The Constitution itself was based on a rich philosophical foundation, which was discussed in the seminal The Federalist. The constitutional provisions have in general stood the test of time, but the changes in the contemporary world beg the question as to how some provisions of the constitution now need relooking and if possible changing or amending to be more appropriately suited to the contemporary conditions. This essay discusses the Second Amendment right to bear arms to critically analyse how the modern democratic state may need these provisions to be changed. The essay uses the critique of the theory of originalism to propose that the Constitution is open to change and should be changed in places. The essay also discusses the challenges posed by an electoral system in a democracy to changing or amending the constitutional provisions, when these are contrary to the popular public opinion.

Second amendment right to bear arms: The need for change

The Second Amendment gives people the right to carry Arms by providing that:

“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”.

Essentially, the Second Amendment provides the right to bear arms as an important aspect of the security of the state, which is to be protected by a well regulated militia. There are historical reasons for why this right was included in the Bill of Rights as a part of the scheme of security of state and by reference to militia. One of these reasons is related to the historical conditions related to a young immigrant nation with a frontier that needed defending from the indigenous populations as well as foreign invasions (Longley, 2017, p. 2). Moreover, the American colonies had wrested independence from the British army through the militias made up by armed civilian colonists (Halbrook, 1981). Therefore, there was popular opinion as well as constitutional arguments made in favour of including such a right into the Bill of Rights of the American constitution.

The question is whether the social conditions of the contemporary world justify the continuation of the right as a constitutional right. It is this argument that is considered closely in this section of the essay. One of the most vocal supporters of the Second Amendment rights is the powerful National Rifle Association, which has been criticised by critics as constantly declaring “loud and clear, that this is a constitutional right—without mentioning the context in which this right was included in the Constitution” (Chaliand & Blin, 2007, p. 407). Therefore, one of the key arguments that is made by those who support change to the Second Amendment is that the right was included in the American Constitution in a particular context, which is no longer relevant and therefore, the continuation of the right to bear arms as a constitutional right in the present form is no longer tenable. The increase in gun related violence, including in schools of America lends support to the arguments for control of gun culture in America. The opponents of the Second Amendment argue that the gun culture of America has become a social problem (Lopez). Public and mass shootings in America have taken many lives, with recent examples including the Marjory Stoneman Douglas High School shooting in Florida, which led to 17 deaths (Lopez, 2018). The Second amendment and the supposed inalienable right to bear arms is now being questioned as not being socially tenable (Lund, 2014).

Even if it is accepted that the original intent of the constitution makers was to treat the Second Amendment right as an individual right, there is no bar on reassessing the constitutional provisions in the contemporary context. Even moderate originalists accept that some interpretation of the constitution is permitted and even required so long as the underlying premise, which is fairly discoverable in the Constitution is also taken into account (Bork, 1986). Those who oppose originalism argue that when the older constitutional provisions lose their relevance, they need to be reassessed and amended if need be (Bork, 1986). Considering the toll that gun violence had taken in the United States with even school children falling prey to gun violence, it is submitted that the Second Amendment needs to be reconsidered, especially keeping in mind that the frontier conditions in the post colonial new American federation of the 18th century do not exist any longer to justify the use of Second Amendment to protect individual rights to bear arms.

State’s right for ensuring of peace or individual right or self-defence?

The Supreme Court has sought to read the Second Amendment that supports the view that the Amendment simply meant to give state governments the right to have militias (United States v. Miller, 307 U.S. 174 (1939), 1939). The Supreme Court opined that a plain reading of the Second Amendment did not signify that the provision was to give an unlimited or unrestricted right to private individuals to have unlimited and unchecked arsenal of weapons, but to ensure that the governments of the states were able to maintain well-regulated militias (United States v. Miller, 307 U.S. 174 (1939), 1939). This is a position that seeks to argue that the Second Amendment is not aimed at giving unlimited right to private persons and it is different from some academics’ stated position that the Second Amendment does give such a right to private persons and therefore is one of the troubling provisions in the American Constitution (Levinson, 1989). Such academic literature draws attention to the social as well as individual values of the right to bear arms, with the link to the individual’s right to self-defence being also protected by the Second Amendment and not just the state’s right to maintain peace (Amar, 1991). If the Second Amendment is seen as an individual right, then there is a challenge in ensuring gun control without changing the constitution because that would mean that the state is encroaching on the constitutional rights of the individual; on the other hand, if it is accepted that the Second Amendment right is a state right, then there is no need to change the Amendment for the purpose of gun control laws, which is why proponents of gun control laws have sought to delink Second Amendment from individual rights based on the scanty Second Amendment jurisprudence developed by the Supreme Court (Ehrman & Hannigan, 1989). However, such arguments have not been met with much success so far (Reynolds & Kates, 1994).

Over a period of time, this has come to be more political than rights oriented as pointed out by Spitzer (Spitzer, 2015). It may be mentioned that some jurisprudence on gun control has already been developed by the Supreme Court in spite of the Second Amendment (Cook, et al., 2011). At the same time, America remains the only liberal democracy which allows citizens to procure arms and ammunition with the degree of ease (Kopel, 1992). Some events in the United States involving mass shootings have exposed the problems with the gun culture in the nation which need immediate responses from the law, including constitutional law as there is a tendency to link private persons’ right to bear arms with the Second Amendment rights. One of the recent mass shootings was the Las Vegas shootings by Stephen Paddock who killed 58 people and injured another 851 concert attendees (Cassidy, 2017). The perpetrator had not only been able to purchase an arsenal of semiautomatic weapons and ammunition but also bring these unchecked into his hotel room, from where he fired approximately 1100 rounds killing a large number of people (Cassidy, 2017). The changes in the gun control laws prior to this incident by the Trump administration, allowing people with mental illness history to buy guns has been one of the points of criticism of the American approach to gun laws (Cassidy, 2017). The question that arises is whether given the recent history of mass shootings in the United States, it would be appropriate to consider Second Amendment as a right for private individuals to own guns or a right of the state to ensure peace. To go back to constitutional theory itself, supporters of gun rights argue that St. George Tucker’s writings provide evidence for the original intent of constitutional makers to consider Second Amendment as an individual right, a claim which has been refuted in a recent academic work (Cornell, 2005). It is argued that even if Tucker did support individual right to guns in Second Amendment, his views should be seen in the context of the 18th century America when social life was much different from what it is now. It is also argued that Tucker had himself explicitly noted that Second Amendment is addressed to the rights of the states and not individuals (Tucker, n.d.).

Amendment history

This section will consider the arguments in favour of changing the contours of the Second Amendment by not treating the right as inalienable. The argument will be based on the critique of originalism. One of the concepts that will be discussed in this section is how the electoral system affects law-making in a democracy because one of the principal challenges in making changes to the Second Amendment are in the form of the popular sentiment against such a change (Halbrook, 1981).

The doctrine of originalism argues that the substantive intent of those who created it must be given effect in constitutional interpretation (Lermack, 2007). Originalism can be an impediment to changing the constitution to suit the contemporary period. However, all originalists do not oppose the changing of constitution as some argue for moderate originalism (Bork, 1986). American constitution has been changed from time to time to add new social concepts, such as, abolition of slavery and women suffrage. The support for changing some parts of the American constitution comes from the notion that the constitution of a nation needs to be reassessed from time to time to ensure that it stays relevant. Reassessment of constitutional provisions is a sign of a healthy democracy where existing constitutional notions can be exposed to democratic debates to assess whether the provisions need to be changed or not.

The issue of gun control is not as much a constitutional question as it is a political issue because there is considerable popular support to the Second Amendment in the United States, particularly in some of the states like Texas, that vehemently oppose the prospect of any change to the Second Amendment rights (Cook, et al., 2011). Although the United States Supreme Court has developed some jurisprudence on Second Amendment rights, there has been very little political will to make tighter gun control laws because of the popular opinion which supports Second Amendment right to bear arms. The recent political history of the United States bears testament to the significance of popular opinion on gun control. In this context, Spitzer notes that even Barack Obama had to backtrack on his views on gun control by saying that he supported gun ownership for sports and hunting because his election campaign was pilloried for his views on gun control (Spitzer, 2015). Spitzer also notes that supporters of gun rights see any interference with the right to bear arms as a serious interference with ‘rugged individualism’ (Spitzer, 2015).

Therefore, an important issue here relates to the popular opinion and values such as individualism which will have an impact on the electoral system; can the constitution be amended even without the will of the people? It has been suggested that constitutional politics, that is, energising of citizens on a great number be used to engage with and debate on matters that are fundamental principle rather than using a normal politics approach where organised interest groups try to influence law making with regular citizens not being much involved in the process (Johnson, 2005). It can be argued that the organisations like National Rifle Association are involved in normal politics of influencing gun control laws and blocking constitutional change to the Second Amendment. Rather, what is needed is that the majority of the citizens are involved in the process of influencing change in the gun control laws including constitutional amendment if the meaning of scope of Second Amendment still appears to be of an individual right nature. This would mean that there is an impact on the electoral system with regard to gun control laws and the rights contained in Second Amendment. American politics have so far been controversial in the area of gun control and Second Amendment rights and this speaks to the nature of social values that have an impact on constitutional change in a democratic system (McKay, et al., 2002). However, recent increase in the opponents of right to bear arms as an individual rights suggests that there is scope for change in the Second Amendment from a constitutional politics context where a larger number of regular citizens may drive such change.

Conclusion

While the Second Amendment does provide a right to bear arms, there is still lack of consensus as to whether this right is addressed to states or individuals. Miller did suggest that the right is addressed to states but academic opinion has remained divided. In the meantime, there is an increase in gun violence within the American society which has led to calls for tightening of the gun laws and even change to the Second Amendment. Even if it is accepted that the Second Amendment gives individuals rights to bear arms, it does not mean that the original intent of the constitution cannot be deviated from once the contexts within which such intent was framed have themselves changed. America is no longer a frontier nation where civilians have to be armed into militias. There is therefore a case for reassessment of the Second Amendment.

References

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