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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.Gun advocates typically emphasize the last two clauses of that sentence and claim an individual right to own firearms. Two recent Supreme Court cases have upheld this apparent individual right: District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).
Yet, as Zimmerman argues, the individual right to bear arms was never really upheld until these recent cases. Previously, the Supreme Court had pointed to the words "well regulated militia" and "security of a free state" and concluded that individuals did not have a right to own guns.
Until the very recent past, individual gun rights were severely restricted. Believe it or not, the entire concept of “gun rights” – that is, of citizens’ unbridled freedom to buy and own firearms – is largely a creation of our own times.Saul Cornell, the Paul and Diane Guenther Chair in American History at Fordham University, made a very similar argument in The Daily Beast on December 18:
Yes, the Second Amendment to the Constitution guarantees the “right to bear arms.” But if that means individual citizens – as opposed to state militias – can carry firearms anywhere they want, someone forgot to tell our 19th-century forebears. As law professor Adam Winkler has found, 10 states passed laws in the 1800s barring the possession of concealed weapons.
One of them was Texas, the lodestar of the gun-rights movement today. But as the Lone Star governor said in 1893, “the mission of the concealed weapon is murder. To check it is the duty of every self-respecting, law abiding man.”
A cursory look at the history of the Second Amendment shows that regulation was a central part of its rationale—putting “well regulated” at the very start of the amendment was no accident. For instance, starting in the colonial period, states enacted a variety of “safe-storage” measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston. Up until the 1980s, there was no “individual-rights” theory of the Second Amendment.
See also Jeffrey Toobin in The New Yorker, December 18.
Cornell (as does Zimmerman) quotes this interesting statement from conservative chief justice Warren Burger:
As late as 1991, former Supreme Court chief justice Warren Burger famously called the idea of an individual right to bear arms “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special-interest groups that I have ever seen in my lifetime.”Indeed, Cornell, Toobin and Zimmerman all credit (or blame) the National Rifle Association (NRA) for creating the political movement to change the Court's interpretation and make gun ownership an individual right.
Cornell points out that the Court's recent cases, especially Heller, are clearly not grounded in the original intent of the Founding Fathers:
[Justice] Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could. “incoherent”.See also this Even leading conservative legal scholars have harshly criticized the ruling: federal judge Richard Posner said most professional historians reject Scalia’s historical analysis in the case, and described Scalia’s jurisprudence as Harvard Law Review article by Reva B. Siegel.
In any case, virtually all the legal analysts agree that even if individuals now have a right to bear arms under the Second Amendment, it is certainly not an absolute right that trumps other freedoms. America is a land of free speech, but the First Amendment does not allow anyone to yell "fire!" falsely in a crowded theater, incite illegal activity, defame others, publish obscenity, utilize false and deceptive commercial advertizing, etc.
Thus, the federal government surely has the constitutional power to ban assault weapons, as it has done previously, limit the number of bullets in a magazine, tax ammunition, close the gun show loophole on background checks, etc.
Stanford Law professor John Donohue explains the effectiveness of Australia's set of gun policy reforms after a horrific gun massacre in 1996 that left 35 dead:
Australia's policy, by the way, was changed under the political leadership of Prime Minister John Howard, a self-described conservative.The Australian federal government persuaded all states and territories to implement tough new gun control laws. Under the National Firearms Agreement (NFA), firearms legislation was tightened throughout the country. National registration of guns was imposed and it became illegal to hold certain long guns that might be used in mass shootings.The gun ban was backed up by a mandatory buy-back program that substantially reduced gun possession in Australia.The effect was that both gun suicides and homicides (as well as total suicides and homicides) fell. Importantly, while there were 13 mass shootings in Australia during the period of 1979--96, there have been none in the sixteen years since.
As Peter Bergen wrote for CNN this week, gun violence can be viewed as a national security issue. Since the 9/11 attacks, jihadi terrorists have killed 17 Americans in the US, while "88,000 Americans died in gun violence from 2003 and 2010." The numbers are actually lower because of improved medical treatment in U.S. hospitals -- "the number of people seriously injured in gun-related violent incidents has actually gone up almost 50 percent in the past decade."
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