Thoughts On The 2nd Amendment


Recently there have been cases of "mass shootings" across our country. The most recent is the horrible killing of small children at a CT elementary school. Subsequently, there were the expected outcries for stict/stricter gun control laws.

While such calls for gun control laws are expected, one can not legalize away "crazy". Also, one can not legalize away "criminal". Laws controlling guns only control law abiding citizens who are "in their right minds". Controlling others? Not so much. How about not at all! After all, illegal drugs are just that - illegal. Have laws against such drugs done anything to thwart the sale and use of illegal drugs? Nope! Why would laws against guns have a greater effect?

"Insane" people who want to do great harm do not need guns. A knife-wielding man slashed 22 children and an adult at an elementary school in central China last week. Anyone who harms children in any way is not sane. Laws will not deter the "insane".

Consider this: Years ago (1981) England outlawed guns as a result of the Dunblane massacre. This event was similar to the tragic event in CT. The crime rate involving guns went UP 40% during the first two years AFTER the ban on guns. By definition, to a criminal the law, any law, means nothing.

Before proceeding there is a point of clarification perhaps needed. Many who advocate gun control seem to focus on "assault rifles" and/or "assault weapons". These are NOT the same. Specifically, an "assault rifle" has the capability of firing "automatically" (i.e., pull the trigger and the rifle keeps firing until you let up on the trigger - or, known as "fully automatic") or "semi-automatically" (i.e., only one round is fired each time you pull the trigger). An "assault weapon" only fires semi-automatically - one round per pull of the trigger - just like a revolver does - be this a handgun or a rifle.

Owning an "assault rifle" in this country is illegal without a special "tax" being paid, severe background checks, and a whole lot of money. Except for special "SWAT" teams the police do not have available to them "fully automatic" weapons. However, many violent "gangs" have them and can get them illegally and with ease.

I should point out that a "revolver" holding 6 rounds can easily be fired at a more rapid rate than a "semi-automatic" weapon.

So, all this aside, a gun can kill you no matter what type it is. It also can defend you from someone attempting harm on you or your family - and, I'm not even addressing hunting. Further down in this submission it is correctly pointed out that you are safer from crime where little gun restrictions exist than elsewhere.

The 2nd Amendment to our Constitution is there for a reason.

The Second Amendment to the United States 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.

Seems pretty straight forward: "..the right of the people to keep and bear arms,...". Issues arise, and have been raised, as to the actual meaning of the words. Such issues come from the awkard structure of the wording. Had there been an "and between the words "free state," and the words "the right" there would never have been any discussion. But the word "and" is not there. As such, people have tried to make all kinds of interpretations to the awkard sentence.

So, with all the confusion about this critical, basic right specified in our Constitution, how has the Supreme Court ruled re: the 2nd Amendment?

There have been several cases heard by SCOTUS:

In McDonald v. Chicago, the most recent (2009/10) case, the Supreme Court invalidates Chicago's handgun ban and holds the Second Amendment applies to the states.

In District of Columbia Et al. v. Heller, the second most recent (2008) case, the Supreme Court holds in part: The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

The other five Supreme Court cases directly related to the Second Amendment are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people," U.S. v. Verdugo-Urquidez (1990), are also discussed. (Links to the Supreme Court decisions are provided at the end of each section.)

U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.

This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution.

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."

Of the Second Amendment cases, U.S. v. Miller is the most mis-cited (intentionally and otherwise) by the lower courts, not to mention the news media, textbooks and encyclopedias. Some courts have acknowledged the true holdings of Miller, but then simply disregarded them.

See what I mean by "confusion" over the wording? Nothing this simple should be this hard. As it stands now, the right to bear arms applies to the individual.

The Founding Fathers of our great nation had a few things to say about the subject:

“Fireams stand next in importance of the Constitution itself. They are the American people’s liberty teeth and keystone under independence.”

--- General Washington

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks."

--- Thomas Jefferson to Peter Carr, 1785. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.

"One loves to possess arms, though they hope never to have occasion for them."

--- Thomas Jefferson to George Washington, 1796. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.

"We established however some, although not all its [self-government] important principles . The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed;"

---Thomas Jefferson to John Cartwright, 1824. Memorial Edition 16:45, Lipscomb and Bergh, editors.

"No freeman shall ever be debarred the use of arms."

---Thomas Jefferson: Draft Virginia Constitution, 1776.

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

---Benjamin Franklin, Historical Review of Pennsylvania, 1759.

So why do some people, mostly progressive, liberal persons, desire strict gun control? From what I've read these people honestly feel that the world would be much safer without guns - crime rates would be lower, etc. The facts do not back up this feeling; in fact collected data STRONGLY suggests the exact opposite is true. Consider: from law abiding citizens there is little to fear, guns or not. From criminals there is much to fear, guns or not. And, if guns were prohibited only law abiding citizens would comply; criminals would not - and the criminals would still get guns.

Let's compare almost any city in Florida and New York City. The State of Florida makes it very easy to own a gun and carry it in a concealed manner. In New York it's next to impossible to obtain a concealed carry permit (or, Carrying Concealed Weapon - CCW). If you were to consider mugging (or worse) a person in New York, you would be safe not worring about getting shot - hit with something possibly, but not shot. In Florida there's the very real possibility you would be shot - DEAD! That 90-something little old lady, who would be an easy target in New York, would most probably be "packing" in Florida and shoot you. That is why crime rates in Florida and like states have much lower crime rates than gun restrictive states.

The below data and analyses were compiled from the FBI's annual report on crime (Uniform Crime Reports), and from other law enforcement agencies - (from internet searches).

"Violent crime rates are highest overall in states with laws severely limiting or prohibiting the carrying of concealed firearms for self-defense". (FBI Uniform Crime Reports, 1992)

The total Violent Crime Rate is 26% higher in the restrictive states (798.3 per 100,000 pop.) than in the less restrictive states (631.6 per 100,000).

The Homicide Rate is 49% higher in the restrictive states (10.1 per 100,000) than in the states with less restrictive CCW laws (6.8 per 100,000).

The Robbery Rate is 58% higher in the restrictive states (289.7 per 100,000) than in the less restrictive states (183.1 per 100,000).

The Aggravated Assault Rate is 15% higher in the restrictive states (455.9 per 100,000) than in the less restrictive states (398.3 per 100,000).

Using FBI data (1992), homicide trends in the 17 states with less restrictive CCW laws compare favorably against national trends, and almost all CCW permittees are law-abiding.

Since adopting CCW (1987), Florida's homicide rate has fallen 21% while the U.S. rate has risen 12%. From start-up 10/1/87 - 2/28/94 (over 6 years) Florida issued 204,108 permits; only 17 (0.008%) were revoked because permittees later committed crimes (not necessarily violent) in which guns were present (not necessarily used).

Of 14,000 CCW licensees in Oregon, only 4 (0.03%) were convicted of the criminal (not necessarily violent) use or possession of a firearm.

Americans use firearms for self-defense more than 2.1 million times annually.

By contrast, there are about 579,000 violent crimes committed annually with firearms of all types. Seventy percent of violent crimes are committed by 7% of criminals, including repeat offenders, many of whom the courts place on probation after conviction, and felons that are paroled before serving their full time behind bars.

Two-thirds of self-protective firearms uses are with handguns.

99.9% of self-defense firearms uses do not result in fatal shootings of criminals, an important factor ignored in certain "studies" that are used to claim that guns are more often misused than used for self-protection.

Of incarcerated felons surveyed by the Department of Justice, 34% have been driven away, wounded, or captured by armed citizens; 40% have decided against committing crimes for fear their would-be victims were armed.

An example of where gun ownership opponents cite non-valid statistics to try and curb gun ownership:

Firearms ownership opponents claim that "violent crime" went up in Florida since that state enacted CCW legislation in 1987, a misleading statement for multiple reasons:

- Florida's homicide rate has declined 21% since adopting CCW in 1987.

- No comparison of aggravated assault, robbery, and rape (99.3% of Florida violent crimes) beginning before 1988 is valid, according to the Florida Dept. of Law Enforcement. In 1988, Florida changed its method of compiling crime statistics.

- In Florida, as in the U.S., more than 70% of violent crimes do not involve guns. Violent crime rates, therefore, don't necessarily reflect violent gun-related crime trends. According to the most recent FBI Uniform Crime Reports (1992), nationwide firearms were used in the four violent crimes that make up the total "Violent Crime" category, as follows: Aggravated Assault (58% of volent crimes) -- firearms used in 25%; Robberies (35% of violent crimes) -- firearms used in 41%; Rapes (6% of violent crimes) -- firearms used in an estimated 5% - 10% (survey data); and Homicides (1% of violent crimes) -- firearms used in 68%.

- In Florida: Aggravated Assaults (64% of violent crimes) -- firearms used in 25%; Robberies (30% of violent crimes) -- firearms used in 37%; Rapes (4% of violent crimes) -- firearms used in an estimated 5% - 10% (survey data); and Homicides (0.7% of violent crimes) -- firearms used in 61%.

Anti-gunners cite "studies" they claim show that firearms kept at home are "43 times more likely" to be used to kill family members than be used for self- defense. (Other "studies" claim different ratios.) The 43:1 claim, based upon a small-scale study of King County (Seattle) and Shelby County (Memphis), is a fraud, because it counts as self-defense gun uses only those cases in which a criminals were killed in the defender's home. Approximately 99.9% of all defensive gun uses are not fatal shootings, however -- criminals are usually frightened off, held at bay, or non-fatally wounded. Also, many defensive firearms uses occur away from home. Further, suicides were counted as "family member killings" in the "study,"elevating that number more than 500%. Unfortunately, some of these "studies" are funded with taxpayer dollars, through grants from the Centers for Disease Control and Prevention, a division of the U.S. Dept. of Health and Human Services.

Since adopting CCW in 1987 Florida's homicide rate has decreased 21% while the U.S. Rate has risen 12%.

Nationwide, homicide rates peaked in 1980 - 1981. After fluctuating, but dropping overall thereafter, both the U.S. and Florida homicide rates began to rise in 1986. Florida adopted CCW in 1987, and its homicide rate began to decline, dropping 21% 1987 - 1992. The U.S. rate continued its upward trend, rising 12% in the 1987 - 1992 period. (Source: FBI Uniform Crime Reports)

With all that being said, should EVERYONE be allowed to own/carry a gun? I do not believe they should. Persons not adults or with violent criminal records or with certain mental instabilities should be prohibited. Even though the NRA somewhat disagrees, I feel that proper background checks on persons are a good thing. And, a short waiting period for a gun purchase isn't a bad thing either. I definitely don't want someone who is in a rage over something to be able to buy a gun. It's kind of like the ole "Count to 10 before you say something." concept. Many disagree with this; I care not - it's my opinion, they are welcome to theirs.

Some gun "purists" have indicated that the 2nd Amendment is there not only for personal/family protection and hunting but, also, in case the government becomes tyrannical. There is ample evidence that our Founding Fathers had similar feelings. As an example, Thomas Jefferson had this to say: "The strongest reason for the people to retain the right to keep and bear arms is, at last resort, to protect themselves against tyranny in government." In today's world I am uncertain of the viability of such a position.

As an example, the government has at its disposal fuel air bombs, fully automatic weapons of high caliber, F22 aircraft, helos, and even nuclear weapons. I feel that I and my .40 cal semi-automatic pistol could do little to thwart such an adversary. But, the "two of us" can protect my family from violent crime - and have. Without using the gun or even pointing it at anyone, just holding it in my hand with it pointing toward the ground four would-be attackers decided that "discretion was the better part of valor" and ran away. We are both safe today because it's legal here to own a firearm.