Constitution in 2013 - Changes and Interpretations - Term Paper Example

The second amendment of the bill of rights in the American constitution s 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 amendment was incorporated in the bill of rights on December 15 1791. It was based on the bill of right of 1689 in the English common laws that supported the right to self-defense, resistance to oppression and acting in defending a state or a country as argued by Sir William Blackstone. He argued that the origin of the idea of arming the citizens dated back to around 700 AD in England when King Alfred required all the citizens to be armed depending on their financial status with the poorest at least owning a spear and a lance. With time, the ownership of weapons was even allowed to the workers of a landowner, which was in preparation for crossing the sea to Gascavy. This paper will explain the history of the right to own weapons in American bill of rights and how the interpretation of the same has changed for the last two centuries including the relevant Supreme Court cases involved. In1785 delegates from two states of Maryland and Virginia met to address the inadequacies that were in the present in the articles of the confederation, and a year later, another meeting was held with delegates from five states that identified the solutions to the problems. These includes setting up of an arbitration process to handle disputes between states, the need for setting up a militia to defend the states against foreign invasions and an interstate force that is trained to suppress insurrections especially by the slaves. Federalists such as James Madison who supported the congress to be given the power over security and forming the army was of the opinion that the federal government would not be able to raise a strong enough army to counter the militias. However anti federalists were not supportive of the constitution that gave such huge powers to the federal government as they thought the federal government would decide to disarm the militias. In order to solve the gridlock and push ahead with the adoption of the constitution, a compromise had to be reached and the anti federalists wanted the powers of the federal government to be decentralized (Geber 48). It was agreed that a bill of rights should be included in the constitutions so the federalists promised to support an amendment of the constitution if it was adopted and this convinced many of the anti federalists to support the constitution that was ratified on June 21 1788. After the ratification of the amendment strong opposition arose from both the federalists and the anti federalists alike about the reluctance of the government to form a professional armed police force that would replace the sheriffs in the local areas which when situations got out of hand, military companies or vigilante groups were used. In 1792, congress passed and act that provided for formation of an organized militia for national defense and required every male citizen of the United States of America who is between the ages of eighteen years and fort five to avail himself to be enrolled in the militia. Within six months of enrolment he should have the type of firearms that the act dictated, the act also set certain standard of manufacturing firearms by private weapon manufacturers although this was not achievable in those periods and compliance rates ranged from 10 to 65 per cent. The terms that have been used in the second amendment have led to different interpretations, for instance the term “regulated Militia” in Heller, the Supreme Court, stated that it means just proper training and discipline and not anything else. In Nunn v State, Justice Scalia of the Supreme Court dismissed an order to ban carrying of gun s in public by saying that the second amendment protected the right to self-defense. In a dissent, Justice Stevens argued that the amendment was to protect one in use of firearms when he is in service of a well-regulated militia. Justice Scalia explains another term “right of the people” as referring to rights that belong to an individual and not to a group of people, she further says the phrase “the people” is used in the constitution to refer to members of a certain community and not of a certain unknown group. The meaning of “keep and bear arms” is to have arms that are not necessarily meant for military use but for self defense as was enshrined in some states constitutional provisions of the 18th and 19th century. In a dissent however, Justice Stevens argued that the “right to bear arms” was only for possession of arms in military service and that if the founders of the amendment intended the civilians to be armed they would have included phrases like “in defense of themselves” (Halbrook 12) Certain supreme court cases have been brought forward in regard to the second amendment of the bill of rights about the ownership of firearms, these cases have shaped the way cases that deal with the possession of fire arms have been dealt with and we will look the cases. The united states Supreme Court uses the individualistic model where the right to possess weapon is with an individual and not with a certain group or the collective model, argues that the right to possession of firearms is bestowed on an individual if he only belongs to a militia. In United States v Cruikshank case that happened in 1875 after election flaws where a white militia killed more than 200 black people, the state held that the second amendment in the bill of rights was to limit the powers of the national government and since the state was not involved, it could not be invoked. In Presser v Illinois case of 1886, a Herman Presser who was the head of a German paramilitary organization was arrested for parading a group of his members in the streets of Chicago, which was contrary to the laws of the state of Illinois that required such an action should have the authorization from the governor. The Supreme Court upheld the decision of United States v Cruikshank and said it cannot prevent the state or the federal government from regulating militia but went further ahead to say it cannot deny citizens from possessing arms as this would deny America reserve military personnel. In the case of Milner v Texas in 1894, Franklin Milner was sentenced to death for shooting a police officer to death, he tried to appeal saying that the second amendment applied to state laws however, it was held that the bill of right does not apply to state laws. In Robertson v Baldwin case of 1897, the supreme court held that the laws that regulate the carrying of concealed weapons does not infringe on the second amendment as the amendments that originated from Britain carried with them exemptions which even if they were not formally written, they are acknowledged by the constitution. In United States v Miller case of 1939, the Supreme Court rejected an amendment in to the national firearm act that disallowed transportation of unregistered weapon between states. Justice McReynolds held that it was illegal to transport such gun and although the second amendment allowed possession of gun, the judgment did not consider the applicability of the short gun in self-defense. In the judgment of District of Columbia v Heller, the Supreme Court made some landmark decisions that defined the view of the second amendment, they held that the second amendment allowed for individual possession of firearms who are not connected to any militia for purposes that they have been traditionally held such as self-defense. Secondly, the court held that the possession of firearms is not unlimited in all situations and conditions, the regulations that exist for instance on carrying of concealed arms or insane people possessing guns applied. The other decision by the courts was against the ban of handguns by the District of Columbia and the trigger lock requirement that the court held that the directive was in violation of the second amendment and locking or dismantling the gun at home made it hard to fulfill the role of the firearm for self-defense (Halstead and Halstead 98) In Macdonald v Chicago case of 2010, the supreme court ruled that the second amendment applied to local and state governments to the same extent it applied to the federal government therefore it was incorporated The debate on carrying of firearms is as old as the American constitution with the anti federalists who say it as a means for the population to protect itself from a tyrannical government or against external attacks. Several cases were brought to the courts due to disputes in the second amendment between local, state or federal governments and individuals who saw some of the state rules and regulations on firearms as intending to disarm the people. In the recent past, several cases of firearms being used to indiscriminately kill innocent American citizens have been reported in Connecticut, Oregon and some other areas that have necessitated for review of the ownership and use of the firearms to protect the people from criminal use of the guns by the owners. Works cited Geber, larry. The second amendment. Lanham, Maryland: Rosen publishing group inc, 2011. Print Halstead, T.J, and Halstead, T J. District of Columbia V. Heller: The Supreme Court and the Second Ammendment. Washington, D.C: Congressional Research Service, Library of Congress, 2008. Print. Halbrook, Stephen P. The Founders Second Amendment: Origins of the Right to Bear Arms. Chicago, IL: Ivan R. Dee, 2012. Print. Read More