The Right to Keep and Bear Arms in America:
Stronger than Ever
Artemus Ward
Dept. of Political Science
Northern Illinois University
aeward@niu.edu
• Gun rights have never been stronger, and guns
more prevalent, in America than they are right
now.
• Gun rights advocates have the most powerful
lobby in Washington, D.C. and have been wildly
successful in promoting gun rights, thwarting
gun regulation, cutting off federal funding for
research, and stymieing data collection and
sharing.
• Both major political parties favor gun rights.
• The U.S. Supreme Court recently articulated and
individual right to own a gun that neither the
federal government nor any state can infringe.
• In short, the gun rights movement has been a
resounding success and is instructive for how
legal, political, and social change happens in
America.
Introduction
The
nd
2
Amendment
• What does this mean?
Competing Interpretations
•
There are generally two distinct positions on
what the 2nd Amendment means:
1. Pro-gun interests emphasize the second half
of the amendment and conclude that it
guarantees a constitutional individual right
to keep and bear arms.
2. Those who favor government restrictions on
private gun ownership emphasize the first
half of the amendment. They argue that it
protects only a collective right or the states
to arm their militias; there is no individual
right, unless it is in conjunction with a state
militia, to own firearms.
• Which one is correct?
Public Opinion
• Between 35%45% of
Americans own
a gun totaling
roughly 1/3 of
the 1 billion
guns owned
worldwide.
• A 2008 Gallup
Poll showed
that 3 out of 4
Americans
believe they
have the right
to own guns.
Public Opinion
• Not surprisingly, gun
owners are more
supportive of an
individual right than
are those who do
not own guns.
• Perhaps surprisingly,
those who do not
own guns still
overwhelmingly
support the
individual-right
position.
Public Opinion
Public
Opinion
• Yet at the
same time,
half of
Americans
favor more
restrictive
gun laws.
• Why?
United States v. Miller (1939)
• Until recently, over its 200-year history, the Supreme Court had only
decided 6 cases dealing directly with the 2nd Amendment.
• In the most important of these, United States v. Miller (1939), the
Court unanimously upheld the National Firearms Act (1934) which
regulated “gangster weapons” including machine guns, sawed-off
shotguns, and silencers, essentially requiring them to register with the
federal government.
• Justice James McReynolds wrote for the Court adopting the collectiveright point-of-view. The opinion reasoned that because there was no
evidence to show that these particular weapons had any relationship
to the preservation or efficiency of a well regulated militia, they were
not protected by the 2nd Amendment.
• The justices also reasoned that because Article 1, Sec. 8 of the
Constitution gives congress the power to call forth and arm the militia,
but reserves to the states the power to appoint officers and train
them, the 2nd Amendment was to aid in this process.
Miller’s Aftermath:
Gun Control Act of 1968
• The effect of Miller was that the militia, collective-right view generally won out in
America and federal gun control laws (such as requiring registration and banning
handguns and automatic weapons) were passed and never struck down under 2nd
amendment grounds.
• Because the Court did not recognize an individual right to keep and bear arms, state
and local governments were free to regulate guns as they saw fit.
• In the wake of the assassinations of the Kennedys and Martin Luther King and the
armed and violent protests that followed, congress passed at President Lyndon
Johnson signed into law the Gun Control Act of 1968—the first major gun control law
in decades.
• The law banned mail order sales of rifles and shotguns and prohibited most felons,
drug users, and people found mentally incompetent from buying guns.
1968 Republican
Party Platform
• The same year, the Republican Party took a moderate position on guns as part
of their presidential nominee Richard Nixon’s emphasis on law and order.
• Their platform favored “enactment of legislation to control indiscriminate
availability of firearms” while “safeguarding the right of responsible citizens to
collect, own and use firearms for legitimate purposes,” and recommended a
balance between federal and state responsibilities.
National Rifle Association (NRA)
• In 1977 the NRA began transforming
from an organization for hunters and
sportsmen that promoted gun safety
and was not particularly political to
the politically powerful gun rights
organization we know today.
• For example, they had supported all of
the federal regulations of the 1930s
and parts of the 1968 Gun Control Act
including restrictions for felons and
the mentally disabled.
Brady Bill (1993)
• The 1981 assassination attempt of Ronald Reagan and shooting of his press secretary James
Brady ultimately led to, after sustained opposition by the NRA, the passage of a new gun
control law.
• The Brady Handgun Violence Prevention Act of 1993 enhanced the Gun Control Act of 1968
by creating a background check system which required licensed sellers to inspect the
criminal history background of prospective gun purchasers. Initially, it called for a 5-day
waiting period, but the NRA successfully lobbied to change it to instantaneous with the sale.
• It also added to the list of categories of individuals to whom the sale of firearms is prohibited
including felons, fugitives, drug users, the mentally disabled, illegal aliens, dishonorably
discharged former military personnel, those who have renounced their citizenship, those
under restraining orders, those convicted of misdemeanor domestic violence.
The Rise of the NRA
• Wayne LaPierre led the organization’s efforts to mobilize the American people,
undo gun control legislation, and ensure that legislators supported gun rights.
• They undertook a massive publicity campaign to make gun rights synonymous
with being patriotic. To be pro gun was to be an American.
• They hired actor Charlton Heston to be their spokesperson. They raised
enormous sums of money, lobbied politicians, and contributed money to
political campaigns.
• For example, they spent $20 million on the 2000 election to defeat Democratic
presidential nominee Al Gore—a gun regulation advocate. In many of the
states that Gore lost like Florida, West Virginia, and his home state of
Tennessee, the NRA’s anti-Gore campaign made the difference. Had Gore won
any of these states, he would have won the presidency.
District of Columbia v. Heller
(2008)
• In 1976 the District of Columbia, concerned with the high levels of gun-related
crime, passed the nation’s most restrictive gun control ordinance. The law
essentially banned the private possession of handguns. Shotguns and rifles could
be owned, but only if the weapons were registered, kept unloaded, and
disassembled or restricted by trigger locks. The law allowed the chief of police,
under certain circumstances, to issue a one-year certificate to carry a handgun.
• Dick Heller, a D.C. police officer, had been granted a license to carry a handgun
while on duty providing security at the Federal Judicial Center. Heller applied for
permission to own a handgun for self-defense, but he was refused. Claiming that
the District’s statute violated his Second Amendment right to bear arms, Heller
brought a suit against the city.
Robert A. Levy and the
Creation of a Test Case
• Heller’s case was orchestrated by Florida attorney Robert Levy who had become a wealthy man in his
first career as a money manager. At 49, he entered George Mason Law School and graduated first in
his class. After clerking for two federal judges, he devoted his professional life to libertarian causes.
• Levy, who had never owned a gun, saw DC’s law as a violation of personal freedom and private
property rights. He recruited 6 possible plaintiffs to challenge the law, but only Heller met the strict
standing requirements to pursue legal action.
• To eliminate any possible influence over the case by the National Rifle Association (NRA) and any
other gun rights group, Levy funded the litigation out of his own pocket. The NRA objected to the
timing of the lawsuit and the George W. Bush administration was also suspicious.
• Alan Gura, whom Levy chose to argue the case before the Supreme Court, later said that he was
frustrated with the Bush Justice Department under John Ashcroft, who was attorney general when
the case first arose, for not pressing the Supreme Court hard enough. “Clearly there are government
lawyers who are very jealous of their authority and they don’t need any more constitutional rights
out there restricting their freedom of operation,” Gura said.
• Ultimately, Levy went on to become Chairman of the libertarian Cato Institute.
March 18, 2008. Solicitor General Paul Clement makes his argument without any notes in front of (L-R): Justices Breyer, Kennedy, Stevens, Chief Justice Roberts, Scalia,
Souter, and Ginsburg. Sitting next to Ginsburg, but not pictured here, were Justices Thomas and Alito.
District of Columbia v. Heller (2008)
An Individual Right
• Justice Antonin Scalia delivered the 5-4 majority opinion, striking down the DC law and declaring a
right to own handguns for self-defense in the home.
• The Court engaged in both a textual and historical analysis of the 2nd Amendment.
• Scalia explained:
• the “right of the people” means an individual right as it is used elsewhere in the Constitution;
• “arms” applies “to weapons that were not specifically designed for military use and were not
employed in a military capacity” hence, non-military weapons are protected;
• “to keep arms” means “to retain… to have in custody… to hold; to retain in one’s power or
possession”
• “bear” means to “carry” for a purpose – confrontation.
• Scalia concluded that in an era when there was no standing U.S. Army, everyone understood the
right to keep and bear arms as an individual one in case a militia was necessary to fight oppressors if
order broke down.
• “Putting all of these textual elements together, we find that they guarantee the individual right to
possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the
historical background of the Second Amendment.”
District of Columbia v. Heller (2008)
The Right to Self-Defense
• The justices further reasoned that the inherent right of self-defense is
central to having a gun in the home for protection.
• “[T]he inherent right of self-defense has been central to the Second
Amendment right. The handgun ban amounts to a prohibition of an entire
class of ‘arms’ that is overwhelmingly chosen by American society for that
lawful purpose. The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute. Under any of the
standards of scrutiny that we have applied to enumerated constitutional
rights, banning from the home ‘the most preferred firearm in the nation to
“keep” and use for protection of one’s home and family,’ would fail
constitutional muster.”
• Scalia has said that he considers the opinion the greatest vindication of his
originalist approach to constitutional interpretation.
District of Columbia v. Heller (2008)
• Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader
Ginsburg, and Stephen Breyer dissented.
• He explained that the 2nd Amendment was passed as a response to fears
that Congress would disarm state militias and create a national standing
army. Stevens said that it has nothing to do with regulating private civilian
use of firearms and does not enshrine the common-law right of selfdefense in the Constitution.
• Hence, the right to keep and bear arms is for military purposes. Congress
may regulate civilian use.
• “Even if the textual and historical arguments on both sides of the issue
were evenly balanced, respect for the well-settled views of all of our
predecessors on this Court, and for the rule of law itself would prevent
most jurists from endorsing such a dramatic upheaval in the law. . . .”
• “Until today, it has been understood that legislatures may regulate the
civilian use and misuse of firearms so long as they do not interfere with
the preservation of a well-regulated militia. The Court’s announcement of
a new constitutional right to own and use firearms for private purposes
upsets that settled understanding.”
Stevens had been so
confident of his ability
to win a majority and
that his argument
would carry the day
that he circulated
his draft dissent
before Scalia
circulated his draft
majority opinion.
McDonald v. Chicago (2010)
• In McDonald v. Chicago (2010) the Court ruled 5-3 that
the 2nd Amendment right to keep and bear arms for
self-defense applies to state and local governments as
well as the federal government. Hence Chicago’s local
gun ban was unconstitutional.
• Writing for four justices, Justice Samuel Alito held that
the 2nd Amendment was incorporated via the 14th
Amendment’s Due Process Clause.
• In a separate concurrence, Justice Clarence Thomas said
that he would overturn The Slaughter-House Cases
(1873) and incorporate the 2nd Amendment via the 14th
Amendment’s Privileges and Immunities Clause.
Contemporary
Developments
• Despite the mass shootings in recent years (even of 6 and 7 year old children
at Sandy Hook elementary school), no gun control legislation was passed.
• Banning assault weapons or high-capacity magazines was off the table. Even
toughening background check laws or regulating gun shows did not happen—
even though 90% of the American people favor expanded background checks.
• Indeed, the NRA’s position has been that the solution to gun violence is more
guns. The legislation that has been passed has been to allow individuals to
carry concealed guns. Calls to arm teachers and other officials have been
made and grow louder with each school shooting.
Enforcing Existing Gun Laws
• Weak laws and loopholes backed by the gun lobby make it easier to get guns
illegally.
• Around 40% of all legal gun sales involve private sellers and don't require
background checks. 40% of prison inmates who used guns in their crimes got
them this way.
• An investigation found 62% of online gun sellers were willing to sell to buyers
who said they couldn't pass a background check.
• 20% of licensed California gun dealers agreed to sell handguns to researchers
posing as illegal "straw" buyers.
• The Bureau of Alcohol, Tobacco, Firearms, and Explosives did not have a
permanent director for 7 years, due to an NRA-backed requirement that the
Senate approve nominees.
Are They Coming for
your Guns?
• No one knows the exact number of
guns in America, but it's clear
there's no practical way to round
them all up (never mind that no
one in Washington is proposing
this). Yet if you fantasize about
rifle-toting citizens facing down the
government, you'll rest easy
knowing that America's roughly 80
million gun owners already have
the feds and cops outgunned by a
factor of around 79 to 1.
• Source: Congressional Research Service, Small Arms Survey
Guns in Comparative Context
• America has six times as many firearm homicides
as Canada, and 15 times as many as Germany
• This chart, compiled using United Nations data,
shows that America far and away leads other
developed countries when it comes to gunrelated homicides.
• Why? Extensive reviews of the research by
the Harvard School of Public Health's Injury
Control Center suggest the answer is pretty
simple: The US is an outlier on gun violence
because it has way more guns than other
developed nations.
• America has 4.4% of the world's population, but almost
half (42%) of the civilian-owned guns around the world.
Mass
Shootings
• In December 2012, a gunman walked into Sandy Hook Elementary School in Newtown, Connecticut,
and killed 20 children, six adults, and himself.
• Since then, there have been at least 885 mass shootings (4 or more people shot), with shooters
killing at least 1,144 people and wounding 3,180 more, as this map shows.
• Still, mass shootings make up only a tiny portion of America’s firearm deaths, which totaled more
than 32,000 in 2013.
• Source: Mass Shooting Tracker, a crowdsourced database.
In the U.S. there is a
Mass Shooting almost
Every Day
• Using data from a
study in Pediatrics an
d the Centers for
Disease Control and
Prevention, this
chart shows that
states with more
guns tend to have far
more gun deaths.
• "Within the United
States, a wide array
of empirical
evidence indicates
that more guns in a
community leads to
more homicide,"
David Hemenway,
the Harvard Injury
Control Research
Center's director,
wrote in Private
Guns, Public Health.
Gun Homicides in
the Developed
World
• It’s not just the
U.S. – Developed
countries with
more guns also
have more gun
homicides.
Gun Control Laws
and Gun Deaths
• When economist
Richard Florida
examined gun deaths
and other social
indicators, he found
that higher
populations, more
stress, more
immigrants, and
more mental illness
did not correlate
with more gun
deaths.
• But he did find one
telling correlation:
States with tighter
gun control laws
have fewer gunrelated deaths.
Gun Homicides
Declining
• The good news is that all firearm
homicides, like all homicides and
crime, are on the decline.
• There’s still a lot of debate among
criminal justice experts about why
this crime drop is occurring —
some of the most credible ideas
include mass incarceration, more
and better policing, and reduced
lead exposure from gasoline.
• But one theory that researchers
have widely debunked is the idea
that more guns have deterred
crime — in fact, the opposite may
be true, based on research
compiled by the Harvard School of
Public Health's Injury Control
Center.
Suicide
• Although America's
political debate about
guns tends to focus on
sensational mass
shootings and murders,
a majority of gunrelated deaths in the US
are suicides.
• This fact is actually one
of the most compelling
reasons for reducing
access to guns — there
is a lot of research that
shows how greater
access to guns
dramatically increases
the risk of suicide.
More Guns,
More Suicides
• The states with
the most guns
report the most
suicides.
• Guns allow people to kill
themselves much more
easily.
• Perhaps the reason
access to guns so
strongly contributes to
suicides is that guns are
much deadlier than
alternatives like cutting
and poison.
• Jill Harkavy-Friedman,
vice president of
research for
the American
Foundation for Suicide
Prevention, said that
reducing access to guns
is important to
preventing suicides: Just
stalling an attempt or
making it less likely to
result in death makes a
huge difference.
• When countries reduced
access to guns, they saw
a drop in the number of
firearm suicides.
• The figure shows that
suicides dropped
dramatically after the
Australian government
set up a gun buyback
program that reduced
the number of firearms
in the country by about
one-fifth.
• Australia is far from
alone in these types of
results. A study from
Israeli researchers found
that suicides among
Israeli soldiers dropped
by 40% — particularly on
weekends — when the
military stopped letting
soldiers take their guns
home over the weekend.
Police
Shootings
• Since the August 9, 2014, police shooting of Michael Brown in Ferguson, Missouri, police
have killed at least 1,112 people.
• A huge majority of these deaths are from gunshots, which is hardly surprising given that
guns are so deadly compared with other tools used by police. There are also noticeable
numbers of fatalities from vehicle crashes, stun guns, and asphyxiations. In some cases,
people died from stab wounds, medical emergencies, and what's called "suicide by
cop," when people kill themselves by baiting a police officer into using deadly force.
More Guns,
More Police
Deaths
• A study in the American
Journal of Public
Health found that states
with more guns also
have more police die in
the line of duty.
• Researchers looked at
federal data for firearm
ownership and
homicides of police
officers across the US
over 15 years. Every
10% increase in firearm
ownership correlated
with 10 additional
officers killed in
homicides over the 15year study period.
• 43% of homes with guns and kids have at
least one unlocked firearm.
• In one experiment, one third of 8-to-12-yearold boys who found a handgun pulled the
trigger.
• One recent study from December 2012 to
December 2013, found that at least 100
children were killed in unintentional
shootings — almost two each week. And this
number reflects just a fraction of the total
number of children injured or killed with
guns in the U.S. each year, regardless of the
intent.
• About 2/3 of these unintended deaths (65%)
took place in a home or vehicle that
belonged to the victim’s family, most often
with guns that were legally owned but not
secured. Another 19% took place in the
home of a relative or friend of the victim.
Kids and Guns
Support for Gun Ownership
Increasing
• Over the past 20 years, Americans have
clearly shifted from supporting gun control
measures to greater support of
"protecting the right of Americans to own
guns," according to Pew Research Center
surveys.
• This shift has happened even as major
mass shootings, such as the attacks on
Columbine High School and Sandy Hook
Elementary School, have received more
press attention.
Public Opinion
• High-profile shootings don't appear to lead
to more support for gun control.
• Although mass shootings are often viewed
as some of the worst acts of gun violence,
they seem to have little effect on public
opinion about gun rights. That helps
explain why Americans' support for the
right to own guns appears to be rising over
the past 20 years even as more of these
mass shootings make it to the news.
Public Opinion Paradox
• Although Americans say they want to
protect the right to bear arms, they're very
much supportive of many gun policy
proposals — including some fairly
contentious ideas, such as more background
checks on private and gun show sales and
banning semi-automatic and assault-style
weapons.
• The difficulty is that once these policies are
proposed, they're broadly spun by politicians
and pundits into attempts to "take away
your guns." So nothing gets done, and
preventable deaths keep occurring.
Sources
• Lopez, German. “Gun violence in America, in 17 maps and charts,”
Vox, August 26, 2015. http://www.vox.com/2015/8/24/9183525/gunviolence-statistics