The Institute for Domestic and International Affairs, Inc.
19 - 22 April 2007
House Committee on
Energy & Commerce
Constitutional Limitations on
the Right to Bear Arms
Director: Olivia Huang
© 2007 Institute for Domestic & International Affairs, Inc. (IDIA)
This document is solely for use in preparation for Rutgers Model
Congress 2007. Use for other purposes is not permitted
without the express written consent of IDIA. For more
information, please write us at idiainfo@idia.net
Introduction _________________________________________________________________ 1
Background _________________________________________________________________ 2
Constitutional Influence___________________________________________________________ 12
Current Status ______________________________________________________________ 12
Party Positions ______________________________________________________________ 14
Democratic Party ________________________________________________________________ 14
Republican Party ________________________________________________________________ 15
Summary___________________________________________________________________ 17
Discussion Questions _________________________________________________________ 18
Works Cited ________________________________________________________________ 19
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Introduction
The United States Constitution provides American citizens with a variety of rights
protected by law. Some of these rights can be interpreted in a variety of ways, as
considerable time has passed since the Bill of Rights was drafted. As a result, some of
the amendments to the Constitution do not reflect the needs of today’s society, and others
were not written explicitly, and as such, are subject to varying interpretations. As an
example, the Second Amendment to the Constitution states, “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.”1 Some argue that this amendment guarantees that every
U.S. citizen should be able to bear arms and own gun, while others feel that the
amendment was intended for national defense purposes, and not for the general public.
In early U.S. history, the question of the constitutional right to bear arms was not
often raised, and rather it was addressed on a local level with several state bans and
regulations. As time went on and protests in the U.S. ensued, the question of whether or
not citizens are guaranteed rights to bear arms and have access to guns arose, often arose
in the form of court cases. As individuals protested local laws and arrests, the Supreme
Court heard many cases, which questioned the second amendment. At the turn of the
century, gun control became more of an issue in the form of legislation. Due to the
influence of violence in the U.S., as well as the First and Second World Wars, guns
became an important technological development. As such, Congress began to legislate
restrictions on firearms. With violence increasing again in the 1960s and 1970s, the
federal government worked with local and state governments to continue to try to
regulate firearms use, leading to a backlash from growing interest groups such as the
National Rife Association, and a series of new court cases protesting new legislation.
In the 1990s a new administration took control, and gun control became the
center of politics in the U.S. President Clinton supported legislation sponsored by
Congress to place new restrictions on firearms, including various background checks and
1
“U.S. Constitution.” http://www.law.cornell.edu/constitution/constitution.billofrights.html
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waiting periods before the purchase firearms, as well as bans on types of weapons and
restrictions in areas where weapons could be carried. These pieces of legislation were
controversial, leading to landmark Supreme Court cases and protests by the public. As
violence throughout the U.S. ensued, particularly in schools, Congress continued to
debate how to control firearms, and whether it was constitutional to do so.
In more recent times, firearms regulation has gone back to a more local setting
rather than a federal focus as it had been in previous years. Many states have begun
introducing their legislative efforts to fit the needs of their local communities. This can be
a difficult task as it is often difficult provide uniform standards and funding for proposed
programs. As a result, the question of whether or not the right to bear arms has taken a
polarized stance within political parties. The Democratic Party, as well as the more
liberal states in the U.S. have generally agreed that firearms should be regulated,
interpreting the Second Amendment in a way that does not necessarily guarantee gun
access to every American. Meanwhile, the Republican Party along with the conservative
states generally oppose gun control, and interpret the Second Amendment as a
constitutional guarantee that Americans are entitled to own their own guns.
Background
Firearms were a common and essential part of early colonial life. Settlers often
banded together in makeshift volunteer militias to provide for mutual defense from
hostile Native America tribes and other invaders. The first assault weapons ban came
long before there was ever a question about the constitutional right to bear arms. In 1692,
the Massachusetts colony prohibited carrying “offensive weapons in public places.”2
Early reliance on local militias and offensive weapons bans continued during the
American independence period, and was based largely upon two important
considerations. First, the newly formed United States did not have the manpower or
authority to create nor sustain a professional army under the Articles of Confederation.
Second, popular opinion reflected a profound mistrust of standing armies stemming from
2
Richard Worsnop, “Gun Control.” CQ Researcher, June 10, 1994,4: 22.
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the professional armies of Europe, some of which had overthrown civilian governments
and deprived people of basic rights. Moreover, there was a deep distrust of the formerly
occupying British Regulars.3
The drafters of the U.S Constitution recognized the need for a professional army
maintained by the federal government and smaller forces controlled by individual states.4
Notable members of the Constitutional Convention of 1787 such as James Madison and
George Mason agreed with this point of view. As a result, the adoption of the
Constitution established the dual militia-standing army system, in which states could
regulate their own militias and the government could regulate the standing army. In the
Federalist Papers, Alexander Hamilton argued that it would be a mistake to restrict or ban
standing armies in times of peace due to the constant threats of Native American tribes.
In addition, Hamilton noted the need for the federal government to impose uniformity on
the militias in order for them to be effective and efficient.5
Keeping these issues in mind, James Madison drafted the Second Amendment in
the Bill of Rights to read, “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.”6 This
particular wording highlights the beliefs of anti-federalists, advocates of state
sovereignty, thereby allowing for the reliance to be upon the militia instead of the
standing army. Despite the atmosphere of controversy in which this amendment was
created, during its first few decades, the intended meaning and application drew
considerably less interest than it does in modern times. The vast majority of arms
regulation was done by states and the first case law on the right to bear arms dealt with
state provisions, not the Second Amendment.7
In the early 1800s, several states enforced their own state laws for firearm
regulation. Kentucky, Indiana, Georgia, and Arkansas all enacted state regulations which
3
Robert J. Spitzer, Politics of Gun Control (Chatham: Chatham House Publishers, Inc., 1995): 27.
Ibid., 31.
5
Ibid 32.
6
U.S Constitution Online, “Amendment II: Right to Bear Arms”, http://www.usconstitution.net/const.html#Am2.
7
Robert J. Spitzer, Politics of Gun Control (Chatham: Chatham House Publishers, Inc., 1995): 37.
4
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prohibited carrying of concealed weapons.8 As time continued, interest groups began to
develop in the United States, representing specific interests. After the Civil War in 1871,
the Civil War veterans founded a group called the National Rifle Association (NRA),
which had an initial intent of improving marksmanship.9 At this point, this group was not
heavily involved in lobbying of the U.S. government; however it would grow to be at the
center of American politics of gun control.
In 1876 the question of the constitutional right to bear arms resurfaced when an
armed mob attacked and killed more than one hundred people in Colfax, Louisiana. The
leaders of the massacre were charged on account of depriving those attacked of firearms
possession. This case became known as U.S. v. Cruikshank, and it was argued that the
defendants were guaranteed the right to bear arms, and therefore should have had
weapons. The court ruled in Cruikshank that while the right to bear arms is a
constitutional right through the Second Amendment, the constitution simply guarantees
that the U.S. government shall not infringe upon this right, not that every citizen must
have a gun. 10
Ten years later in 1886, the Court decided in Presser v. Illinois, that Herman
Presser, who led a group of armed German ethnic workers in a march, which was not a
licensed part of the state militia or parade. The state of Illinois charged Presser of
violating Illinois law and fined him $10. Presser appealed this charge all the way to the
Supreme Court, citing that the Illinois law violated his Second Amendment right to bear
arms. The Court reaffirmed the 1876 Cruikshank decision, and stated that Presser did not
have the right to organize a self-proclaimed, armed military organization. Militias exist
only as defined and regulated by the state or federal government.
Thus this case
confirmed the understanding that the right to bear arms related only to the formation of
militias. The Court rejected the idea that individuals can create their own militias and
8
Richard Worsnop, “Gun Control.” CQ Researcher, June 10, 1994, 4: 22.
“Gun control debate.” CQ Researcher, 14: 949-972.
10
“United States v. Cruikshank et al. “http://www.guncite.com/court/fed/25fcas707.html
9
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also rejected the notion that the Second Amendment protected citizens’ rights to own
weapons for their own purposes.11
In 1894, another case arose in which the right to bear arms was brought into
question. A convicted murderer appealed his charges, stating that the Texas law, which
prohibited the carrying of dangerous weapons, violated the second amendment. In Miller
v. Texas, the Supreme Court ruled that Texas law prohibiting “the carrying of dangerous
weapons” did not violate the Second Amendment.12
In the early 1900s, areas within the U.S. were experiencing gun violence that left
citizens with feelings of unease about firearms. In particular, New York experienced a
spike in armed violence, including the shooting of the mayor of New York City. In
response, New York’s legislators enacted the New York’s Sullivan Act of 1911, the first
modern-day gun control measure, prohibiting the sale and possession of deadly weapons.
It also required a permit to carry or own any gun small enough to be concealed and
established requirements such as showing a “proper cause” to obtain a permit.13 Because
the permit is issued by local law enforcement, it provides a great deal of local control on
firearm availability.14
In the 1930s, the rise of organized crime raised concern over weapons and weapon
control.15 As such, Congress reacted by enacting the Federal Firearms Act of 1934. The
law regulated a variety of firearms including machine guns and some types of shotguns
by taxing them to such a degree that they would become unaffordable. As it was, the
original law covered machine guns, silencers, short-barreled (“sawed-off”) shotguns and
rifles.16 A year later, a Supreme Court case arose as a result of the National Firearms Act
of 1934. At this time, two citizens, Jack Miller and Frank Layton were convicted of
transporting unregistered 12-gauge sawed off shotguns across state lines. U.S. v. Miller
11
Robert J. Spitzer, Politics of Gun Control (Chatham: Chatham House Publishers, Inc., 1995): 40.
“Supreme Court Cases.” http://www.guncite.com/gc2ndsup.html
13
Richard Wornsnop, “Gun control.” CQ Researcher, 4: 505-528.
14
“Gun Law News,” http://www.gunlawnews.org/sullivan.html, Accessed: 12 Dec 2006
15
Bob Adams, “Gun control debate.” CQ Researcher, 14: 949-972.
16
Constance Emerson Crooker, Gun Control and Gun Rights (Westport: Greenwood Publishing Group, Inc., 2003):
86.
12
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challenged the constitutionality of the Second Amendment in that it “represented an
improper use of the commerce power” claiming that despite the allowance of the
Commerce Clause in the Constitution for free trade between states, transporting weapons
across state lines was not legal.17 The Court once
again affirmed its previous rulings and stated that
citizens could possess a constitutional right to bear
arms only in connection with service in a militia,
and it is the constitutional right of Congress, as well
as the states, to regulate firearms.
Commerce Clause:
Article I, Section 8, Clause 3 of the
United States Constitution, known as the
Commerce Clause, empowers the United
States Congress “To regulate Commerce
with foreign Nations, and among the
several States, and with the Indian
Tribes.” Courts and commentators have
tended to discuss each of these three areas
as a separate power granted to Congress.
Four years later, Congress passed Federal Firearms Act of 1938 to regulate
interstate commerce and firearms and consequently curb the possession of such weapons
by criminals. It required gun dealers to obtain a federal firearms license and to maintain
records of the names and addresses of gun buyers. This law also barred dealers in selling
arms to individuals convicted of violent felonies.18 Meanwhile, at the end of the 1930s
and after the Second World War, the NRA had grown in its membership and began
playing a role in public policy by lobbying the federal government about firearms
legislation.19
The next major step in federal gun regulation came in response to a barrage of
public assassinations of political leaders.
The assassinations of President John F.
Kennedy, U.S. Attorney General Robert F. Kennedy, and the Rev. Martin Luther King Jr.
spurred Congress to pass the Gun Control Act of 1968. Unlike the National Firearms Act
of 1934, which worked through the government’s ability to tax, this Act reaffirmed the
government’s constitutional right to regulate interstate commerce.
It banned the
interstate sale or rifles and handguns, also barring the importation of cheap handguns
called “Saturday Night Specials.”20 Because the overwhelming majority of firearms may
17
Robert J. Spitzer, Politics of Gun Control (Chatham: Chatham House Publishers, Inc., 1995): 41.
“The Federalist Firearms Act,” St John’s Law Review, http://www.saf.org/LawReviews/Ascione1.html, Accessed:
12 Dec 2006
19
Bob Adams, “Gun control debate.” CQ Researcher, 14: 949.
20
Ibid, 925.
18
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have crossed a state line from their location of manufacture, this
Saturday Night Special
was a much more effective strategy towards regulation.
In
addition, this law placed an age limit of twenty-one on gun
sales, and required that the license requirements expand to
include more dealers, and more detailed record keeping was
expected of them. The list of individuals that dealers could not sell to increased to felons,
fugitives, illegal drug users, mental defectives, illegal aliens, and those dishonorably
discharged from the armed forces.21 It is interesting to note that just before the Gun
Control Act of 1968 took effect, purchases of the types of firearms it banned and
restricted doubled.22
In 1969, Congress passed a measure that removed the requirement to keep records
of sale of some types of rifle and shotgun ammunition, weakening the Gun Control Act of
1968.23 The following year in 1970, Congress passed the Omnibus Crime Control Act,
which focusing on a plethora of crime topics, had an impact on gun control in the United
States. The Act made it a crime to be carrying a gun while committing a federal crime,
and established mandatory minimum sentences for those that offended this statute.24 In
1972, the Bureau of Alcohol, Tobacco, and Firearms was established to control illegal
use and sales of firearms, and to enforce federal firearms laws and provisions. They
would do so by assessing the applications of those who apply for firearms, issuing
licenses, and inspecting firearms for compliance with federal code.25
Public support for gun control grew in the 1980s a result of a series of mass
murders throughout the country. Several pieces of legislation grew out of this support,
including the Law Enforcement Officers Protection Act, which made it illegal to
manufacture or import “armor-piercing” bullets, those capable of boring through a police
officer’s bulletproof vest. The notion behind this law is that people should not have
21
Constance Emerson Crooker, Gun Control and Gun Rights (Westport: Greenwood Publishing Group, Inc., 2003):
90.
22
Richard Wornsnop, “ Gun control.” CQ Researcher, 4, 505.
23
Ibid
24
Ibid
25
Ibid
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access to or the need for handgun ammunition that is designed specifically with the intent
to severely injure or possibly kill. However, this legislation left gaping loopholes in that
it was not a crime to possess these bullets, but was a crime to knowingly receive any
unlawfully imported ammunition.26 That same year, the National Rifle Association
became more involved in firearms debate on a federal level as it was a key player in the
passage of the McClure-Volkmer Act of 1986. This Act, also known as the “Gun
Owner’s Protection Act,” had two significant provisions. The first of the two provisions
of this act tries to remedy the problems involved with differences in gun laws in interstate
transport by requiring any traveler who legally possesses a firearm to have that firearm be
unloaded and, along with its ammunition, placed in a trunk or locked container. The
second provision prevents any government agency from requiring licensed dealers to turn
over lists of their sales records to the government and also prohibits the government from
establishing any sort system of firearm registration.27
In 1990, Congress passed the Crime Control Act. A part of this Act was the Gun
Free School Zones Act, which made it a violation of federal law for any individual to
possess a firearm at a location he or she knows is a school zone. This Act made a federal
crime out of what had originally been a state or local matter, and treated with the local
laws. In the years leading to 1993, the U.S. Department of Justice released several
studies on the connection between firearms and violent crime. It
found that between 1979 and 1987, offenders used their weapons to
James Brady
kill approximately 9,200 Americans each year and to wound
15,000.28 In response to these statistics, as well as the advocacy of
Sarah Brady, the wife of wheel-chair bound shooting victim, Jim
Brady who was shot in an assassination attempt on President Reagan,
the Brady Handgun Violence Prevention Act, also known as “The
26
Bob Adams, “Gun Control Debate.” CQ Researcher, Nov 2004: 25.
Constance Emerson Crooker, Gun Control and Gun Rights (Westport: Greenwood Publishing Group, Inc., 2003),
93.
28
“Reassessing the nation's gun laws.” CQ Researcher, 1, 158.
27
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Brady Bill,” was enacted in 1993.29 The Brady Bill’s primary provision was the “cooling
period” of five days from when a person applies for the purchase of a firearm, to when
they actually receive it. Advocates of this provision and the bill stated that the cooling
period would reduce crimes that are committed on impulse, as well as provide time for a
thorough background check on the applicant.30
It also required that local law
enforcement officials perform thorough background checks on handgun applicants.
The next critical piece of legislation is the Violence Crime Control and Law
Enforcement Act, also known as the Assault-Weapons Ban, passed on 13 September
1994. This ban defined certain weapons as “assault weapons,” and prohibited their
production, and was proposed as a result of a school shooting in Stockton California. In
response to public outrage, the NRA issued the statement “guns don’t kill people, people
do” and called for the criminal to be punished, not the tool (the gun). Nevertheless,
semiautomatic weapons became referred to as “assault weapons” because of the
mechanism in which the shots are fired. Debates raged and the NRA continued to argue
that semiautomatic weapons should not be banned completely since some hunting
firearms are designed to fire in a semiautomatic fashion. Finally, after much political
debate, the Violent Crime Control and Law Enforcement Act of 1994 was passed in
which it is a crime to manufacture, transfer, or possess a semiautomatic assault weapon.31
In another piece of legislation passed in 1994, a ban was placed on minors possessing
handguns. However, this law makes exceptions for a “temporary transfer” of a handgun
to a minor for various uses such as farming, ranching, target practice, and hunting with
prior parental approval.
The Gun Free School Zones Act was brought back into the public spotlight in
1995. After a high school student, Alfonso Lopez, brought a concealed weapon to his
high school in Texas, he was charged under the Gun Free School Zones Act. The case
was appealed, and went to the Supreme Court, In U.S. v. Lopez, the defendant argued
29
Bob Adams, “Gun Control Debate.” CQ Researcher, 7.
“Reassessing the nation's gun laws.” CQ Researcher, 1, 158.
31
Constance Emerson Crooker, Gun Control and Gun Rights (Westport: Greenwood Publishing Group, Inc., 2003),
97.
30
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that the federal law was not constitutional as it exceeded congressional jurisdiction of the
Commerce Clause in the Constitution. The Supreme Court agreed with this argument,
ruling that the Gun Free School Zones Act was unconstitutional because it “neither
regulates a commercial activity nor contains a requirement that the [gun] possession be
connected in any way to interstate commerce.”32 In response, President Clinton proposed
an amended version of the original Commerce Clause and in 1995, Congress passed the
Gun Free School Zones Amendments Act.
In 1996, an amendment proposed by Senator Lautenberg (D-NJ) titled the
Domestic Violence Offender Gun Ban was enacted, prohibiting a person who has been
convicted of a misdemeanor crime of domestic violence from possessing a firearm. This
law had long been applied to convicted felons, but now extended to those who are
convicted of a crime carrying a sentence of one year or less.33
The Brady Bill was brought into the public arena yet again in 1997 when some of
its provisions were challenged. Two county sheriffs challenged the background checks
that they were required to make on handgun applicants as unconstitutional. In Printz v.
United States, the U.S. government argued that this provision in the Brady Bill was
justified by the necessary and proper clause in the Constitution. The Supreme Court
disagreed and ruled that chief local enforcement officers did not have the constitutional
authority to perform background checks as required of them by the Brady Bill. After this
court case, background checks could only be performed on a voluntary basis for handgun
applicants.34
The following year, the remaining and permanent provisions of the Brady Bill
went into effect. Gun dealers are required to conduct preliminary criminal background
checks of all those purchasing firearms. This check would be conducted through the
National Instant Criminal Background Check (NICS) system that was established in 1998
32
Ibid 94.
“National Center for Women and Policing,” http://www.womenandpolicing.org/gunban.asp, Accessed: 13 Dec
2006
34
The OYEZ Project, Printz v. United States, 521 U.S. 898 (1997),
available at: <http://www.oyez.org/cases/case?case=1990-1999/1996/1996_95_1478>
(last visited January 06, 2007).
33
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for this purpose. With this system, the purchaser waits at the store while the store
salesman calls into NICS, and gets an approval, denial, or delay from the Federal Bureau
of Investigations relative to the purchaser’s criminal history. Those to be denied include
those convicted of domestic violence, illegal aliens or people facing deportation, those
dishonorably mis-charged from armed services, unlawful users of controlled substances,
and those found mentally ill or defective.35
School shootings in Littleton and Columbine Colorado in 1999 left Americans
worried about firearm possession. As a result, legislation was proposed which would
require thorough background checks on buyers at gun shows, and mandated locks on new
and used handguns. The bill was sponsored by Democratic members of Congress, and
was stated to be “full of loopholes,” by Republican members. While the bill passed in the
Senate, it failed in the House.36 In 2000, two additional school shootings in
Massachusetts and Pennsylvania, resurrected the debate over the failed amendment.
Members of Congress stated that a gun show background measure was necessary, as
criminals flock to gun shows, aware that they will not have to face background checks.37
Others argued that new laws were unnecessary, and that existing laws should be enforced
instead.38 Amendments similar to those proposed in 1999 were attached to a proposed
Education bill in 2000. These efforts failed again, this time not passing in the Senate.39
On 13 September 2004, the nation’s ban on assault weapons expired. The Senate
voted to extend the ban, however in doing so it provided immunity to manufacturers from
lawsuits. Meanwhile, the House did not vote to extend the ban, and said they would not
do so without the support of President Bush. While President Bush stated that he
supported the ban, he did not urge Congress to extend it at that time. 40
35
Doug Smith, “Check your Guns at the Door Starting Nov. 30.” Star Tribune, November 22, 1998: 19C.
Andrew Miga, “Bitter House Votes Down Gun Bill.” The Boston Herald, June 19, 1999: 1.
37
Deirdre Shesgreen, “Fatal Shootings This Week Prompt New Debate in House and Senate.” St. Louis-Post
Dispatch, March 3, 2000: A10.
38
John C. Henry, “Gun Control Bid to be Resurrected.” The Houston Chronicle, March 3, 2000: A1.
39
“Senate Rejects Education Compromise.” The New York Times, May 10, 2000: A21
40
David Whitney, “Assault Weapon Ban Set to Expire.” Sacramento Bee, September 12, 2004: A3.
36
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Constitutional Influence
The Second Amendment of the Constitution states “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.”41 The to “to keep and bear arms” portion of the Second
Amendment has been a primary question in whether or not this is a constitutional right
guaranteed to all American citizens, or rather if the founding fathers meant for this to
apply only to a “well-regulated militia.” Each interpretation has had an influence on gun
control policy in the U.S., and continues to do so in modern day. In the past, the
constitution had an impact on firearm regulation as states established their own policies.
There were various assault weapon bans, with individual citizens protesting that they had
the right to bear arms, sometimes arguing that they should be provided with these arms.
At this point, the Supreme Court clarified that the amendment did not guarantee that each
citizen be provided with a gun, just that Congress could not prevent American citizens
from possessing them. More recently, the question of firearm regulation has been more
tumultuous with interest group involvement.
Current Status
After the expiration of the assault weapons ban, Congress became less vocal about
the constitutional right to bear arms on a federal level. Instead, many local municipalities
and state governments took a more active role in setting the tone for gun control, and
answering the question of the public, whether or not the constitution guarantees citizens
the right to bear arms.
In October 2005, the governor of Illinois vetoed legislation which required the
destruction of gun-purchase record, prohibition local governments from enacting
firearms-transportation rules, and elimination of the waiting period for obtaining a gun.
41
“U.S. Constitution.” http://www.law.cornell.edu/constitution/constitution.billofrights.html
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With the support of the state police the governor then signed a Democratic version of the
bill that closes the “gun-show loophole” that preserved the records.42
In February 2006, a voter initiative banning handguns and restricting other
firearms passed in San Francisco, California. Approved by fifty-eight per cent of voters,
this law prohibits the sale, distribution, transfer and manufacture of all firearms and
ammunition, and bans the possession of handguns.43 A month later, the Christian Science
Monitor reported that the reason gun dealers have declined almost eighty percent within
the last decade is due to regulations which require licensed gun dealers to comply with
zoning laws and report certain information to local police.44
In July 2006, it was reported that a San Leandro, California sporting goods store is
the nation’s second biggest source of guns linked directly to crimes in terms of weapons
that are acquired or used illegally. The study reported that in 2005, 447 crime guns were
traced to this store and similarly large numbers in 2004 and 2003.
Gun control
proponents cheered as the ATF removed the firearms license of owner Anthony
Cucchiara after years of investigations. In this process, police discovered a number of
record-keeping violations, including an incident where more than 1,700 guns claimed by
the shop were missing from its inventory. There were also 431 irregularities involving
forms filled out by customers prior to a firearm purchase, a form intended to screen out
prohibited buyers. At the end of the process, the store remained open, with its owner
suing to restore is license to sell firearms.45
In September 2006, Philadelphia Major John Street stated that mayors from
Pennsylvania and neighboring states favor the “one gun a month” measure, but gun
control as a whole has been tough to sell in Pennsylvania, where gun owners’ rights are a
major concern. New York Mayor Michael Bloomberg added that the lack of restrictions
42
“Police officials back Blagojevich's vetoes of gun measures,” The Associated Press State & Local Wire,
October 21, 2005.
43
Herbert A. Sample, “Few supporters for S.F. gun ban,” Scripps Howard News Service, February 22,
2006.
44
Alexandra Marks Staff, “Why gun dealers have dwindled,” Christian Science Monitor, March 14, 2006.
45
Kara Platoni, “Dealing In Death”, East Bay Express, July 5, 2006.
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on the number of handguns that can be purchased could possibly help criminals in border
states to obtain weapons illegally. Pennsylvania state leaders proposed to spend $225
million in state tax dollars to help cities and towns across Pennsylvania hire 10,000 new
police officers by 2010 while also limiting handgun purchases. Regardless of these
proposals, it is unclear if any of these suggestions will emerge as bills that will ultimately
pass through Congress.46
In late 2006, the House of Representatives continued to debate measures to
address gun violence after a shooting in Pennsylvania. In this incident, five Amish girls
were killed, and five more seriously wounded by a gunman who attacked the West Nickel
Mines Amish School. Gun control proposals failed in a series of nonbinding votes after a
five hour “committee of the whole” session. Gun control opponents claim that limiting
access to a weapon will not reduce gun crimes or keep criminals from getting guns;
rather, they should focus on tougher sentences for offenders and increased enforcement.
Again the idea of “one a month” was proposed, heavily supported by Democratic
Governor Ed Rendell, which should serve to prevent “straw purchases” where a person
buys handguns in large numbers and resells them on the streets. Pennsylvania, like many
other states, still has no waiting period before buying a gun, and other than a background
check, does not allows police to restrict who can get a license to carry a concealed
weapon.47
Party Positions
Democratic Party
Many members of the Democratic Party have supported gun control, and believe
that the Constitution does not guarantee a right for every citizen to bear arms. During his
administration, President Clinton voiced his support for gun control and backed a
plethora of legislation to do so, including the Brady Act and the assault weapons ban.
46
Martha Raffaele, “Gun-Control advocates, opponents lobby, as Pa. House mulls bills”, The Associated
Press State & Local Wire, September 27, 2006.
47
Marc Levy, “Amish shootings color House debate on gun violence”, The Associated Press State &
Local Wire, October 3, 2006.
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Many attribute the GOP takeover of the House in the mid 1990s to President Clinton and
the Democratic Congress’s support of gun control.48 During the 2004 presidential
campaign, Senator John Kerry (D-MA) spoke out against the expiration of the assault
weapons ban, saying “Bush chose to make the job of terrorists easier and make the job of
police officers harder.”49
In September 2006, Democratic state legislators rallied in Pennsylvania for
legislation that would curb gun use and firearms violence. At the rally they stated their
plans to push through a package of bills for Pennsylvania which would limit the sale of
handguns to one per month, ban military-style assault weapons, add more funding for
police forces and equipment, and require gun owners to report missing firearms within a
twenty-four hour period.50 Gun control advocates condemned President Bush and
congressional Republicans for letting the ban expire. But because Democrats feared the
power of the NRA, gun control did not become a major issue in the fall 2004 presidential
election. After the successful election of President Bush for a second term, very little
progress has been made in way of gun control.
Democratic leaders such as Senator Hilary Clinton (D-NY), have voiced their
opinion on the need for children to be protected from guns and for counselors in school
systems to be trained to see “early warning signs” of possible shootings. In order to
protect individuals, Senator Clinton has stated that she supports the legislative proposal to
license and register all handgun users, and voted against both a bill prohibiting lawsuits
against gun manufacturers and another banning lawsuits against gun manufacturers on
gun violence.
Republican Party
The Republican Party has generally agreed with the idea that the second
amendment in the constitution guarantees all citizens the right to bear arms. As such, they
have generally resisted gun control measures. The 2004 presidential election was crucial
48
49
50
Bob Adams, “Gun Control Debate” CQ Researcher, Nov 2004: 4.
Ibid 3.
“Democrats Rally for Gun Control.” http://democrats.org/a/2006/09/democratic_law_1.php
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for the gun debate because it marks the last year in which the Brady Law would have
been effective. On 13 September 2004, a Republican Congress allowed a ten-year ban on
assault weapons to expire. Two weeks later, the Republican House of Representatives
decided to abolish a series of strict gun control laws in the District of Columbia, despite
ten years of declining murder rates attributed to those laws.
President Bush has voiced his position that he firmly believes individuals who
commit crimes with guns ought to be punished to the fullest extent of the law, and that
guns should be kept “out of the hands of people who shouldn’t have them.”51 Therefore,
he supports background checks at gun shows and voluntary safety locks. More so than
President Bush, Vice President Cheney holds a firmer view in favor of gun rights. He
was one out of twenty-one members of Congress in 1985 to vote against a ban on armor
piercing bullets. He also opposes a seven-day waiting period prior to handgun purchases.
Former Senate Majority leader Bill Frist (R-TN) also generally agrees with the
Bush Administration on the constitutional right to bear arms. Senator Frist voted against
banning lawsuits against manufacturers and also on background checks at gun shows, but
he voted in favor of more penalties for gun and drug violations. On the other hand,
Senator John McCain (R-AZ) spoke generally of the need for some tighter gun controls
on criminals. In Congress, he stressed the need to require background checks for buyers
at guns shows, and he supported a requirement that trigger locks be sold with handguns.
But the Senator did agree with the Republican Party on the two major gun control
measures, the 1994 ban on several types of assault weapons and the Brady Bill.
51
On the Issues, ‘Gun Control: Political Leaders’ Views”,
http://www.ontheissues.org/celeb/George_W__Bush_Gun_Control.htm.
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Summary
The political issues surrounding guns is an especially controversial topic in the
United States today.
Through the three milestone Supreme Court cases U.S. v.
Cruikshank (1876), Presser v. Illinois (1886), and U.S. v. Miller (1939), the Supreme
Court ruled that the Second Amendment does not afford an individual the right to bear
arms free from government control nor does it have any other effect than to restrict the
powers of the national government. The American government passed various pieces of
legislation which sought to keep weapons out of the hands of dangerous individuals while
maintaining the interests of private individuals in self-defense, hunting, and target
shooting. Some of these laws include the National Firearms Act of 1934, the Gun Control
Act of 1968, the McClure-Volkmer Act of 1986, the Brady Bill in 1994, and the assault
weapons ban, which expired in 2004.
Regardless of the existing and past legislation, the debate over whether or not the
U.S. Constitution guarantees individuals the right to bear arms continues. From historic
court cases in which some argued that individuals had a right for firearms, to modern day
school shootings this question persists. On one hand it is important to consider
preventative measures in order to thwart firearm tragedies. Still, it is important to address
individual rights and liberties – and whether or not they actually exist within the
framework of the constitution.
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Discussion Questions
• Does the mention of “militia” in the Second Amendment mean that maintaining
viable militia is the obvious purpose of the Amendment?
• How are federal persecutions of state and local gun offenses affecting the
distribution of law enforcement authority in this country?
• How has firearm regulation impacted violence in the past? Has it been effective?
Why or why not?
• How has your state approached firearm regulation? Has it followed more federal
restrictions or created its own laws?
• Where does your political party stand on the constitutional right to bear arms?
• Which existing laws have been effective/ineffective? Why or why not?
• What role do interest groups play in the gun control debate? How much of a role
should they have?
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Works Cited
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“Amendment II: Right to Bear Arms,” U.S Constitution Online,
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Crooker, Constance Emerson Gun Control and Gun Rights (Westport: Greenwood
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“Democrats Rally for Gun Control.”
http://democrats.org/a/2006/09/democratic_law_1.php
“The Federalist Firearms Act,” St John’s Law Review,
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Henry, John C. “Gun Control Bid to be Resurrected.” The Houston Chronicle, March 3,
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Miga, Andrew. “Bitter House Votes Down Gun Bill.” The Boston Herald, June 19, 1999.
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The OYEZ Project, Printz v. United States, 521 U.S. 898 (1997), available at:
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Platoni, Kara. “Dealing In Death”, East Bay Express, July 5, 2006.
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Sample, Herbert A. “Few supporters for S.F. gun ban,” Scripps Howard News Service,
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