Term Paper on "Second Amendment: Heller and McDonald Cases"

Term Paper 18 pages (5773 words) Sources: 8

[EXCERPT] . . . .

Right to Bear Arms: The Heller and McDonald Cases

The Second Amendment is one of the amendments of the Bill of Rights that was drafted in 1789. The creation of this amendment was fueled by pressure from the Anti-federalist to adopt certain rights and limitations within the constitution in attempts to safeguard the freedoms of the people. The interpretation of this amendment has remained increasingly controversial and an issue of extensive debates. The controversy surrounding the interpretation of the Second Amendment is based on whether it secures a collective and/or individual right. Moreover, what precisely follows from the conclusion that the Second Amendment secures an individual right? This paper explores the history of the Second Amendment, what rights it was initially designed to protect, and the differing opinions as to its actual meanings. In order to accomplish this, we will also examine the two major Supreme Court decisions surrounding the Second Amendment.

History of the Second Amendment

The drafting of the Second Amendment can be traced back to the 18th Century when commentators usually talked about the wrongdoings of standing armies given that professional soldiers were a threat to liberty (Vandercoy, p.3). Given that standing armies were regarded as instruments of fear whose main aim was to preserve the prince, citizens in free states would take up arms and defend their communities until the threat passed. The link between arms and liberty was constantly examined across various periods in the history of the nation.

The founding fathers' views on the relationship between arms and democracy or civil liberties were significantly influenced by English republican views on the same. There were two different groups that shared contradictory views regarding this relationship i.e. Federalists and Anti-federalists. Federalists seemingly supported the standing armies since they supported the establishment of a strong central government. On the contrary, Anti-federalists believed that freedoms including the right to self-rule were best safeguarded through preserving local autonomy. However, Federalists and Anti-federalists concurred that there as an inextricably strong link between arms and liberty.

When the Constitution was drafted, the Federalists supported it and did not dispute the argument that legislative tyranny was the basic evil that individuals had to protect themselves against. In support of the Constitution, Federalists contended that the proposed Constitution offered sufficient guarantees to check the threats of any standing army. In essence, Federalists believed that the proposed Constitution had enough checks and balances that would act as an actual deterrent to governmental abuse. On the other hand, Anti-federalists believed that the standing army was a threat to liberty. Federalists and Anti-federalists believed that the major threat to the republic was tyrannical government. Consequently, the eventual check on tyrannical government was an armed public. In essence, both sides agreed that having an armed population was essential in preserving and guaranteeing liberty.

Nonetheless, Federalists and Anti-federalists disagreed on several issues despite their agreement on the threat of tyrannical government. First, these groups disagreed on whether the proposed Constitution had enough checks and balances to prevent the national government from oppressing the population. Secondly, while Anti-federalists argued that a bill of rights should be included in the Constitution to guarantee some civil liberties, the Federalists contended that it was unnecessary on the premise that the proposed Constitution had enough checks and balances. One of the major reasons that fueled Anti-federalists position against the Constitution was the concern that the new government will use it as an instrument to disarm thirteen state militias that had emerged to protect civic liberties from abuse by the government (Waldman, p.xi).

The framers of the Constitution clearly embraced James Harrington's political theory based on the belief that an armed population is crucial towards preserving liberty. This political theory suggests that the extent of liberty obtained and maintained was directly linked to the ability of armed citizens to claim and protect those rights from any enemies (Vandercoy, p.17). The ratification process of the proposed Constitution was characterized by publication of various Federalist and Anti-federalist pamphlets that were geared towards influencing this process with regards to how the Constitution would be effective. These pamphlets, other documents, and the framers' political philosophy generate more concerns regarding the right to bear arms. For instance, there were concerns that the federal government would eventually create its own militia that would later disarm people.

New York, New Hampshire and Virginia ratified the Constitution on the premise that individuals had a right to bear arms. These states also understood that the Congress would never disarm citizens who followed the law. On the contrary, North Carolina and Rhode Island did not ratify the Constitution until individual rights like the right to keep and bear arms were acknowledged and guaranteed through amendments. While Pennsylvania and Massachusetts made attempts to amend the Constitution before ratification, these efforts were defeated though not on their merits.

The framers of the Constitution were seemingly against the preservation of states' rights because of fear of governmental tyranny regardless of whether it was state or federal government. As a result, they tried to safeguard people's rights to retaining local autonomy and civil liberties in form of different state governments. The distrust of states' power was later evident during the Revolutionary era and in the enactment of state constitutions. For instance, states like Maryland and New Hampshire provided for a militia in their constitutions but did not explicitly provide a right to bear arms.

After completing the ratification process and the assembly of the First Congress, amendments that would ultimately become the Bill of Rights were introduced by James Madison since the ratification process had promised that amendments would be made. The Second Amendment was one of the nineteen major items that were introduced by Madison on June 8, 1789. This amendment sought to guarantee the right of the people to keep and bear arms free from any infringement by the government. Madison's proposal was influenced by the belief that a well-regulated and well-armed militia was the best possible way to ensure a free country. This proposal among others was referred to a select committee that ultimately provided the wording of the Second Amendment.

According to Vandercoy, the Second Amendment 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" (p.26).

The Second Amendment

As evidenced in the brief overview of the history of the Second Amendment, this amendment was drafted among others in 1789 as part of the Bill of Rights. The development of this amendment was fueled by various issues and concerns during this period. One of the major influences towards the eventual drafting of the Second Amendment was pressure from Anti-federalists. This group advocated for specific rights and limitations within the Constitution in order to protect people's freedoms. The Anti-federalists achieved their goal through exploiting weaknesses in nearly every clause in the Constitution tyrannical mandates that were not subjected to any limitations (Raffin par, 2). Moreover, the view by Federalists and Anti-federalists that an armed population is essential in safeguarding civil liberties helped foster efforts towards the enactment of the Second Amendment.

As previously indicated, the Second Amendment reads, "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." ("The Constitution of the United States," Amendment 2).

Original Intentions behind the Second Amendment

The original intentions behind the Second Amendment have remained an issue of increased controversy. Throughout the years, various arguments have been raised regarding the probable meaning or intention of the Second Amendment. These arguments have basically been centered on whether the Second Amendment secures a collective and/or individual right to keep and bear arms. This generates additional concerns on what exactly follows the assumption that this amendment secures an individual right. The controversial nature of this issue is evidenced in the disagreements between various courts and the lack of a single approach to resolve it. These are several factors that have made it difficult to determine the original intentions behind the Second Amendment including...

Landmark Supreme Court Rulings

The original meaning and intentions behind the Second Amendment have been difficult to deduce following two landmark Supreme Court's decisions in Heller v. District of Columbia and Mcdonald v. City of Chicago. In these cases, the Supreme Court ruled that the Second Amendment does secure an individual right to keep and bear arms. In the aftermath of these landmark decisions, scholars, states and courts have increasingly struggled to determine the extent of these opinions and how to interpret this precedence. Lower courts have disagreed on how to interpret the Supreme Court precedent on the application of the Second Amendment (Meltzer par, 1). Moreover, lower courts have disagreed on the extent with which the right to keep and bear arms is protected by the Second Amendment.

While the landmark rulings by the Supreme Court were made to help deduce the original intentions behind the Second Amendment, several questions are still unanswered and new concerns continue to emerge. There are questions on whether lower courts should enforce their dicta on permissible restrictions when addressing cases that implicate the Second Amendment. In addition, there are concerns on the level of scrutiny that lower courts should apply when examining a law that infringes on the Second Amendment ("Second Amendment" par, 5).

Gun Regulations

The understanding of the original intentions behind the Second Amendment has become more difficult in the past decade given the numerous challenges state and federal governments have encountered in enacting gun regulations. State and federal governments have experienced challenges in gun regulations ranging from bans on guns to legislation preventing the sale of guns to individuals below 21 years. These difficulties have been compounded by the fact they have to carry out a historical analysis of the Second Amendment vis-a-vis the landmark decisions by the Supreme Court in cases relating to this amendment.

Vague Writing

The wording of the Second Amendment is vague; leaving many unsure if it was intended to protect a collective or individual right to arms. During Virginia's Convention to ratify the Constitution in 1788, George Mason, co-author of the Second Amendment, stated...

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."

As quoted in the Philadelphia Independent Gazetteer on August 20, 1789, Samuel Adams argued that...

"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms;..."

In a letter to Justice John Cartwright on June 5, 1824, Thomas Jefferson provided his opinion regarding the Second Amendment by stating...

"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed;... " ("Jefferson Quotes" par, 2).

These opinions were raised because of the vague wording of the Second Amendment, which does not explicitly state whether it secures a collective and/or individual right. As a result, the wording of this amendment has made it difficult to identify the intentions behind it or those of its drafters. However, while the writing of the Second Amendment itself is left vague, it is clear that many of the founding fathers did intend it to protect an individual right to bear… READ MORE

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