Thomas McChesneyThe Second Amendment of the United States of America’s constitution states 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.” This statement has been the topic of many heated debates since its ratification in 1791 as the second amendment to the United States Constitution as part of the Bill of Rights. The controversy around this specific amendment, particularly its scope, has increased drastically over the last couple decades due to the uptick in mass shootings in the United States as compared to the rest of the developed world. The common, knee-jerk reaction to these horrendous acts of violence is to take away the tools that these acts were committed with.
Proponents of more gun control argue that “…the right of the people to keep and bear arms…” is not an inexhaustible right and that limiting what arms are considered bearable, and who can bear them, would be beneficial to reduce gun violence in the United States. While those who advocate to keep the status quo of gun control, or even fewer restrictions, argue that the right to self-defense by whatever means is an inalienable right and actually deters further violence from occurring. But before comparing arguments for whether current laws should be modified, it is paramount to understand what laws are currently in place and how they fail. Effective change cannot be made with knowing where one is starting from.The basis for the current, federal framework for gun control started in the 1930s with the National Firearms Act in 1934. The National Firearms Act institutes that taxation of the manufacturing and selling of firearms as well as requires certain categories of firearms to be registered.
Some of the firearms required to be registered include improvised guns, mufflers/silencers, machine guns, and rifles and shotguns that have barrels under a specified length. The catalyst for this first major federal gun control act, and its specific gun types, was brought primarily by gang violence during the Prohibition era of the United States. The next major legislature passed by the federal government was the Federal Firearms Act of 1938. This act requires gunsmiths and gun traders to be licensed in order to do so. Additionally, the act also made it illegal for felons to own guns. Following the high-profile assassinations of both President John F. Kennedy in 1963 and Martin Luther King Jr. in 1968 another push was made for increase transparency and oversight into the gun market.
The Omnibus Crime Control and Safe Streets Act of 1968 increases the minimum age to purchase a pistol to 21. While the Gun Control Act of 1968 add more regulations to the interstate sale and transportation of guns and adds mentally ill persons and persons who use drugs to the list of people unable to legally own a firearm. The next major gun related act came nearly twenty years late in 1986 in the form of the Firearm Owners Protection Act. This act put some restrictions on how the Bureau of Alcohol, Tobacco, and Firearms conducted inspections of licensed firearm dealers. The act also prohibited people from owning fully automatic weapons that were manufactured after the date that the act was passed on with limiting restrictions on the sale and transfer of automatic weapons manufactured before that date. Finally, one of the last major gun control laws was the 1993 Brady Handgun Violence Prevention Act of 1993.
This act requires that background checks of potential gun buyers to be made by licensed sellers but allows for private parties to skip the background check. The combination of these acts of congress form the minimum level of gun control laws applicable to the United States and provides a framework for individual states to build of off if they so choose. Some of the laws implement by individual states have been challenged in court and brought down. The ruling from these court cases is known as case law and forms the complement to the legislative gun control acts by both federal and local governments.
Historically the Supreme Court of the United States of America has been relatively quiet about gun related cases. It has taken the recent uptick in mass shootings, and the subsequent increase in gun control in some areas, for the Supreme Court to issue landmark rulings in the firearm control space. The first major Supreme Court case of this century regarding gun control was the 2008 case District of Columbia V. Heller. At the time, Washing D.C. had enacted laws that required rifles and shotguns to be either disassembled or use a trigger lock device while stored in home and, more controversially, instituted a blanket ban of pistols. The Supreme Court’s decision overturned the district-wide ban on handguns.
The majority reasoning was that the Second Amendment right to bear arms extends farther than purely militia duty as specifically called out in the amendment. In the court opinion Supreme Court Justice Antonin Scalia qualified their decision with this statement:Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
This statement reassures that certain people groups, such as felons, can be legally barred from owning firearms as well as allowing restriction on how and when firearms are carried in specific buildings. What this court decision did was help clarify the scope of the Second Amendment. Besides the recent Supreme Court case law, many of the current gun control regulations have been in place for decades.
So, why is there just now a breakdown in their effectiveness? To determine this, the who, why, and how of mass shootings must be analyzed. According to the New York Times Article, How They Got Their Guns, many shooters acquired their weapons in a legal manner, but they should not have been able to. A substantial number were able to pass the required background checks either because their past criminal activity or documented mental health issues were not reason enough for their denial. Or their disqualifications were not put into federal databases as was the case with Devin Patrick Kelley. A couple outliers showed no previous criminal activity or mental health issues, but these are the minority. A majority of the shootings could have been avoided if current applicable laws had been applied in a correct manner. In conclusion, the twenty first century has seen quite the uptick in mass shootings in the United States of America.
This phenomenon has led to an increased awareness about, and a call to update, the United States gun control laws and regulations. But what many debates about how the laws should be changed is an understanding of what current laws are in place and how those who commit mass murders acquired the weapons they used to execute them. Current regulations, and the case law that complements them, have repeated established that law abiding citizens have the right to possess firearms outside of strictly militia use, particularly for self-defense. Also established is the legality of restricting the people who can attain firearms, what firearms are legal to own, and where a person is allowed to carry them.
A contributing factor to the increase in egregious acts of violence in the United States is the failure of background checks when applying to purchase a gun and the inability to recognize and treat mental health issues. The pieces are already in place to address these contributing factors, what is lacked is an effective and efficient implementation of current gun control laws and adequate care for United States citizens.
