An Amendment to the United States Constitution - Term Paper Example

An amendment to the United s Constitution due: Table of Contents Table of Contents 2 0 - Introduction 3 2.0 - Need for a new Constitution 3 3.0 - Bill of rights 4 4.0 - Evolution of the 2 amendment over time 5 5.0 - The 2nd amendment impetus on social or political movements 5 6.0 - The 2nd amendment as a subject of litigation 6 7.0 - Current interpretation of the 2nd amendment 8 8.0 - 2nd Amendment evolution in the modern era as anticipated by the framers 9 9.0 - Does the second amendment still empower the people as the framers intended? 9 10.0 - Freedom restrictions and balance between societal and individual rights 9 11.0 - Conflict vs. Consensus theory 10 12.0 - Conclusion 10 13.0 – References 11 1.0 - Introduction The United States constitution of America is a system of basic laws as well as principles that describes the rights of American citizens and sets limitations on what government can do and cannot do. The constitution provides the framework for national (federal) government as well as establishes a federal system, whereby duties are divided between the national government, as well as the states’ governments. One of the central doctrines on which the constitution is created is the separation of powers, which separates the power between three branches of the federal government. The legislative branch (Congress) which has the powers to make laws, the executive branch (which is represented by president, as well as his advisors,) of which has the power to apply the laws, and lastly the judiciary branch (i.e. the supreme as well as other federal courts) which has the power to reverse or dismiss laws that it decides are unconstitutional. 2.0 - Need for a new Constitution Immediately after America won independence from Great Britain with its victory in 1783, during the American Revolution, it became evident that the newly formed nation was in need of a strong central government to remain stable. In 1786, a lawyer as well as a politician from New York by the names of Alexander Hamilton called for a discussion on the matter of a constitutional convention. In February 1787, the legislative body of the confederation supported the idea and invited all the 13 states to have their delegates meet in Philadelphia (A&E, 2014, 1). However, after the creation of the new constitution, it remained vague because that was the main intention of the constitution, so that with time the constitution would grow which in turn would solve many of United States’ current problems that the forefathers could not predict. 3.0 - Bill of rights The constitution’s first ten amendments are collectively referred to as the Bill of rights. The bill of rights ranks alongside the declaration of Independence as well as the constitution as one of America’s most treasured documents. The bill of rights was projected in order to appease the fears of the anti-federalists who opposed the constitutional approval. The bill of rights was fashioned exclusively to guarantee the individual rights and freedoms of citizens under the constitution of which included the first 10 amendments. The bill of rights was also reserved for definite powers to the states and the public, and limited the governments authority in judicial and other proceedings (Carey, 2003, 1). In addition, while the amendments were only initially applicable to the federal government, majority of their provisions had stretched to the states by means of the 14th amendment, a process referred to as incorporation. The drafters of the constitution felt it important to put in writing the constitution because they wanted the constitution to reflect their vision and define the most fundamental freedom rights of the people. The constitution they designed was a meant to endure, address specific challenges that would be faced by the nation, establish sustainable foundational principles that would guide the U.S nation into unclear futures. James Madison pioneered the amendments to the initial United States congress as a succession of articles of legislation. The House of Representatives later on adopted the articles formally on 21 August 1789 and proposed by the joint resolution of congress on 25 September 1789 and became affected on 15 December 1791 as constitutional amendments through the method of approval by three-quarters of the states. Whereas 12 of the amendments were proposed through congress, 10 were only ratified originally by the states. Furthermore, of the two remaining amendments, one was adopted over 200 years later as the 27th amendment, while the other amendment technically remains unresolved before the states. Originally, the bill of rights included the legal protection for white men owning land, and did not provide similar protection for African Americans and women. In addition, the bill of rights is very significant to the American law and government, and to this day remains a vital symbol of American freedoms. 4.0 - Evolution of the 2 amendment over time The second amendment guards the rights to have as well as carry arms. The right to possess arms precedes the bill of rights; the second amendment was established in part, on the right to possess arms within the English common law as well as influenced by the 1689 English bill of rights. The description of this right by Sir William Blackstone was as a supplementary right that supported the natural self-defense rights, oppression resistance, and the civic obligation to act within concert in state defenses. Academic inquest into the scope, purpose, as well as effect concerning the second amendment, has been contentious and has been subject to much analysis. In other words, the bill has not changed through the years since its ratification only the analysis. 5.0 - The 2nd amendment impetus on social or political movements The second amendment in other words can be referred to as politics of guns of which has been the impetus of social and political movements. The issue of gun politics in America politics is very controversial. For the last couple of decades, the discussion concerning the availability of firearms in the United States has been described by concerns over the right to have and carry arms of which is found in the second change of the constitution, and the duties of government in preventing crime, as well as death. Strict supporters of gun control cause that wide gun rights stop the government from fulfilling that duty. Supports of gun rights promote firearms for sporting activities, hunting and self-defense. An added motivation is tyranny defense. Advocates for gun control claim that keeping guns away from the hands of criminals results in communities being safer, while advocates for gun rights claim ownership for firearm by law abiding citizens will reduce crime. Meanwhile, there is an ongoing unresolved debate concerning the relationship between violence and guns. For example, a study in 2003 by CDC (centers for disease control) called for more studies, reason being there was the lack of sufficient evidence to conclude the effectiveness of firearms laws or law combinations reviewed concerning violent results. In addition, with the movement uprising that was in America, of which some resorted to using firearms, the second amendment was in favor of some of the movement groups and hence the misuse and misinterpretation of the second amendment. 6.0 - The 2nd amendment as a subject of litigation Since the Supremes’ Court decision in Columbia District v Heller in 2008, the court declared that the second amendment gives an individual the right to have and carry firearms; several hundred cases of the second amendment have been litigated in the federal as well as state courts (nra-ila, 2013, 1). The litigation pace has seemingly increased since the 2010 court decision in McDonald v. Chicago city. Despite all the court decisions made, the debate continues between gun control as well as gun rights movements and organizations that are related to it. Furthermore, some of the outcomes have left unanswered issues including whether the 2nd amendment restricts state regulations of firearms, as well as standard for evaluation of constitutionality of laws as well as regulations that impact the right of the second amendment. These issues are going to be subject of future litigation (Kopel, 1999, 1). Below are several litigation cases • Cruikshank v. U.S., 92 U.S. 542 (1875) The first, second amendment court case to reach the Supreme Court was that of Cruishark. This particular case is on occasions misrepresented as showing that the second amendment fails protect a person’s right to have and carry arms. Archetypally, Cruishank is cited out of context by appealing the court held the second amendment is not a right the constitution grants. • Presser v. IIIinois, 116 U.S. 252 (1886) In the case, Herman Presser was found guilty of exhibiting armed men without permission from the Illinois state. The court’s ruling was that the states had the power to control as well as regulating military organs including parading activities, and the court further re-affirmed the application of the second amendment as limitation on only the national government. • Texas v. Miller, 153 U.S. 535 (1894) Franklin Miller on appeal was convicted of murder claiming that his second, as well as fourth amendment rights, were violated under the fourteenth amendment. Put differently, the court did not take into consideration whether Miller’s rights were violated under the fourteenth amendment, reason being he had not filed such a claim during his initial trial. • Robertson v. Baldwin, 165 U.S. 275 (1897) In this case, the court stated in dicta that the laws regulating masked arms had not interfered with the rights to have and carry arms and, therefore, were not in desecration of the second amendment. • Eisentrager v. Johnson, 339 U.S. 763, 784 (1950) In this case, the court announced that the fifth amendment due process rights were not an entitlement for enemy combatants because if it was so, then they would be entitled to freedoms of assembly, press, and speech as in the first, second, fourth, fifth, as well as sixth amendments. • Heller v. Columbia District, 554U.S. 570 (2008) In this case, the court announced that the second amendment defends a person’s right to have a firearm of which is unconnected with militia service. The citizen can use it in cases like self-protection within the home. • McDonald v. Chicago, 561 U.S 3025 (2010) In this case, the court announced that the amendment was incorporated, meaning that the amendment limits local as well as state governments to the same point that it restricts the federal government. 7.0 - Current interpretation of the 2nd amendment The second amendment has the distinct feature of being the only bill of rights amendment that has essentially gone unenforced. The Supreme Court has never put down any piece of legislation on grounds of second amendment, in part because justices have disagreed on the intentions of the amendment to protect the right to carry arms as an individual or as a part of the well-regulated militia. In other words, the second amendment has never affected the sitting of the Supreme Court. 8.0 - 2nd Amendment evolution in the modern era as anticipated by the framers The United States’ constitution second amendment has not changed. It says the same thing in the present day as it did in 1791 and therefore means the exact same thing (Sobel, 2012, 1). The only probable change is the peoples’ interpretation of the 2nd amendment. This is not what the framers anticipated. 9.0 - Does the second amendment still empower the people as the framers intended? Yes it does because the second amendment was made to ensure the continuity and flourishing of state militias as a defense means as well as ensure individual rights to possessing firearms (us constitution, 2012, 1) 10.0 - Freedom restrictions and balance between societal and individual rights Question now is, does the amendment today have to be adhered to by both tenets. If the decision is made to put away the individual ownership aspect of the amendment, then reinterpreting the amendment will allow for highly restricted gun ownership which in turn will open up to drastic reinterpretation of other basic parts of the constitution. Then should nothing be done, and hence allow unrestricted ownership of guns, then we create a risk of having a gun society, of which is a risk too great to take. So can we have a constitutional freedom to carry arms and still permit restrictions, as well as regulations? To create a balance, reasonable restrictions are the way forward, recognizing the amendment, but casting it, as has been done with most of the constitution. In any case, the United States has freedom of speech but a person is not able to freely say what they wish to say. One cannot incite violence with consequences. So why cant gun ownership be the same, regulated without violating of the constitution. The trick is finding a balance between restricted freedoms and reasonable regulation, as well as unreasonable unfettered ownership as well as unreasonable prior restraint. 11.0 - Conflict vs. Consensus theory In the case of the amendments, envisioned by the farmers as well as the evolution, it seems the framers were more bent towards the consensus theory because the social ideology centers on political or economic social systems and that if they were to be a change, it would occur within the social institutions provided of which was not the case because due to the evolution of the amendments, conflicts arose in the form of movement groups all across America (Butler and Rothstein, 1991, 11-14). Therefore, it is in order to say that no particular theory paved way for the American people, but it can be said that both Consensus and Conflict theories were in play. 12.0 - Conclusion In summary, we can therefore say, we owe the challenges of the constitution a gratitude debt, for, without their criticisms, there would be no bill of rights, Thomas Jefferson wrote, “There is just enough opposition to enforcing the bill of rights adoption, but not enough force to drain the essential energy of the federal government.” George Washington concurred: “ They have given man the rights to the full as well as fair discussion, and gone on to explain them in a very clear as well as forcible manner that has made a lasting impression. “ That being said, the second amendment of the constitution was created in order to protect the rights of persons to have and carry arms. Fast forward to the 20th and the 21st century, the 20th century had considerable debate pertaining to whether the amendment protects individual rights or collective rights while the second amendment in the 21st century has been focus of renewed academic review as well as judicial interest. In acknowledgment of the necessitate to arm the public as a militia is no longer a concern, but realizing that firearms are a component of the record and the culture of America, and Americans need firearms for both personal defense as well as sport. Ownership of guns is a right indeed — but it is also a huge obligation. With the obligation comes the interest of society to make certain that guns are used safely and are used by individuals who are properly trained and licensed. If a consensus is attained on this simple premise, it then will not be too difficult to iron out the particulars as well as find an appropriate compromise. 13.0 – References Linder, D (2014) Exploring constitutional conflicts: the bill of rights- its history and significance. Retrieved from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html Sobel, R. (2012). Is the Constitution outdated and too vague for the United States today? Retrieved from http://www.examiner.com/article/is-the-constitution-outdated-and-too-vague-for-the-united-states-today Bill of Rights Institute (2010). Bill of Rights of the United States of America (1791). Retrieved from http://billofrightsinstitute.org/founding-documents/bill-of-rights/ Williams, D.C (1996) the militia movement and second amendment revolution: conjuring with the people, 12-36. Retrieved March 21, 2014, from http://www.constitution.org/2ll/2ndschol/96will.pdf Kopel, D.E (1999). The Supreme Courts Thirty-Five Other Gun Cases. What the Supreme Court has said about the Second Amendment. Retrieved March 21, 2014, from http://www.davidkopel.com/2A/lawrev/35finalpartone.htm#Lewis Carey, G. (2003) Celebrate the constitution- Bill of Rights. Retrieved from http://teacher.scholastic.com/scholasticnews/indepth/constitution_day/background/index.asp?article=billofrights U.S Constitution Online. (2012) Constitutional Topic: the second amendment. Retrieved from http://www.usconstitution.net/consttop_2nd.html Levinson, S. (n.d). The Embarrassing Second Amendment. Reprinted from the Yale Law Journal, Volume 99, pp. 637-659. Retrieved from http://www.constitution.org/mil/embar2nd.htm National Rifle Association of America (NRA). (2013). Second Amendment Litigation. Retrieved from http://www.nraila.org/legal/litigation.aspx Library of Congress (2014). United States: Gun ownership and the Supreme Court. Retrieved from http://www.loc.gov/law/help/second-amendment.php#articles Linder, D (2014) Exploring constitutional conflicts: The Incorporation Debate. Retrieved http://law2.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm Theheritagefoundation, (2014). The Constitution of the United States – 1787. Retrieved http://www.heritage.org/initiatives/first-principles/primary-sources/the-constitution-of-the-us Guncite, (2010). Supreme Court Cases. Retrieved from http://www.guncite.com/gc2ndsup.html Butler, C.T & Rothstein A. (1991). On conflict and consensus. Retrieved http://www.learningmethods.com/pdf/on%20conflict%20and%20consensus.pdf Brenneman, B. (1974). The New equal protection- Substantive Due process resurrected under a new name. Retrieved http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1459&context=ulj Historylearningsite, (2013). Supreme Court. Retrieved http://www.historylearningsite.co.uk/supreme_court.htm Read More