The History of the Right to Bear Arms - Modern Debate

Efforts to control gun ownership are a response to gunrelated violence. A renewed effort to decrease crime in the early 1930s led to an unsuccessful attempt by President Franklin Roosevelt to pass legislation requiring the registration of handguns. In 1992 the Brady Handgun Violence Prevention Act was passed, which imposed a five-day waiting period on handgun purchases and a background check on buyers to determine whether they were illegal aliens or had a history of criminal behavior, mental illness, or drug use. The act was named for James Brady, a Reagan administration official who was shot during a 1981 assassination attempt on President Ronald Reagan.

The Brady Law required state and local law enforcement agencies to carry out the background checks until a national system could be established. These early background checks were never carried out to any great extent because Congress did not provide the funds, and in 1997 the requirement was found unconstitutional by the U.S. Supreme Court under the Tenth Amendment (states' rights). The Court's ruling stated that the federal government had no right to order state and local law enforcement agencies to carry out federal programs (Printz v. United States [521 U.S. 898]).

As part of Phase II of the Brady Law, the five-day waiting period and the background check requirement were replaced by a national database for background checks effective November 30, 1998. Known as the National Instant Criminal Background Check System, this computerized system is managed by the Federal Bureau of Investigation (FBI). It is used to make background checks on people seeking to buy handguns or long guns from Federal Firearms Licensees (a Federal Firearms License is required for anyone selling a firearm). By the end of 2001, according to the FBI, 91% of purchases of handguns or long guns were approved within thirty seconds after the purchaser's identifying information was put into the system. If a background check cannot be completed in three business days, the sale is automatically allowed to proceed.

"Collective Rights" Versus "Individual Rights"

The modern debate over gun control is described by Robert Spitzer in The Politics of Gun Control (Chatham, NJ: Chatham House, 1995) as a split between a "collective rights" interpretation of the Second Amendment and an "individual rights" interpretation.

Proponents of the collective rights argument favor stricter control of guns. They point to the opening words of the Second Amendment—"A well regulated militia, being necessary to the security of a free state"—as an indication that the amendment was intended to guarantee the right of states to maintain militias. They argue that since colonial times the concept of a citizens' militia has fallen from use, having been replaced by the National Guard. By this view, the general population does not need unfettered access to guns, as they are no longer expected to form a militia during times of need.

In contrast, proponents of the individual rights argument hold that individuals have a right to keep and bear arms. Gun control opponents add that the phrase "right of the people" is used in other amendments in the Bill of Rights, and in each case it refers to a right of individuals.

The U.S. Supreme Court has yet to rule on the issue of whether the Second Amendment guarantees an individual or a collective right to bear arms. Two recent federal court cases reached opposite conclusions. In November 2001 the U.S. Court of Appeals for the Fifth (Texas) Circuit held that the Second Amendment protects the right of individuals to "privately possess and bear their own firearms" (U.S. v. Emerson [No. 99-10331]). In December 2002 the U.S. Court of Appeals for the Ninth (California) Circuit ruled that the Second Amendment does not grant Americans a personal right to carry firearms (Silveira v. Lockyer [No. 01-15098]). The court's ruling said that the purpose of the Second Amendment was to maintain effective state militias.

Is Handgun Control Unconstitutional?

Handguns are a particular point of contention in the modern gun control debate because they are seen as the weapon of choice for criminals. They are also used for self-defense, and advocates of gun rights argue that any attempt to control their use is unconstitutional. Others point out that no gun control legislation—including legislation affecting handguns—has ever been declared unconstitutional by the Supreme Court under the Second Amendment.

Estimates vary widely as to the number of times handguns are used in self-defense each year. Robert Spitzer calculated 80,000. In 2000 the U.S. Department of Justice put the figure at 108,000. Critics of gun control suggest a figure as high as 2.5 million and say that more violent crimes are stopped by guns than are committed with guns. Spitzer argues that the defensive use of handguns cannot justify the offensive use of handguns by criminals, which accounts for thousands of deaths and hundreds of thousands of injuries annually.

Spitzer illustrated his argument against handgun use on a smaller scale: A convenience-store employee working the late shift is shot and killed by a thug using a handgun. The employee has been denied the use of a handgun and, hence, has lost the ability to defend himself and perhaps save his life. At the same time, however, a depressed woman who was also denied a handgun cannot commit suicide, and a child whose parents were denied a handgun cannot accidentally find a handgun and perhaps kill himself or a friend. So, overall, society is safer.

The Slippery Slope?

Gun rights advocates—many of whom interpret any gun control measure as part of the slippery slope to total disarmament—argue that the convenience-store employee has the same right to life as the depressed woman, who can choose to kill herself with poison or by driving off a cliff. Furthermore, the child can accidentally find and drink repellent or fall into a swimming pool, yet no background check or waiting period is required for the purchase of cars, toxic insect repellents, or swimming pools. The right to keep and bear these items is not constitutionally protected, they argue, and society might very well be safer without these as well. They also contend that we don't need new gun laws; we just need to enforce the existing ones.

Spitzer offers another view of the dangers of interpreting the Second Amendment as an individual right. He believes that gun proliferation among law-abiding citizens will start an arms race with criminals, who will upgrade their weapons and be more willing to use them to kill. This, Spitzer believes, will inevitably result in an increase in gun-related crimes and accidents. Indeed, some law enforcement officers claim that they are already outgunned by criminals with more powerful weapons.

The Second Amendment Foundation, a gun rights organization, counters that criminals do not observe laws. They argue that law-abiding citizens would be perilously exposed to lawbreakers if the government misinterpreted the Second Amendment to control or restrict gun use. Furthermore, they assert, just because the quality of handguns, like most consumer products, has improved is no reason to override the Second Amendment.

In the third edition of his book, The Politics of Gun Control (Washington, D.C.: CQ Press, 2003), Spitzer argued that in the interest of national security, we must reach a compromise between those who favor gun control and those who favor gun rights. He suggested that citizens should not have access to assault weapons, that access to handguns should be limited, and that ownership of hunting and sporting weapons should be protected.

Approaching Gun Violence as a Public Health Issue

Increasingly, researchers and officials are taking a public health approach to gun violence. In Private Guns, Public Health (Ann Arbor, MI: The University of Michigan Press, 2004), David Hemenway contended, "Considering that each year tens of thousands of Americans die from gunshot wounds, the reduction of firearm injuries—and the reduction of the accompanying dread and fear of firearm violence—is clearly within the purview of public health."

Hemenway compared gun violence with major public health issues of the twentieth century, like tuberculosis, tobacco use, and motor vehicle safety. In all these instances, the government at national, state, and local levels mobilized in varying degrees to rally political and social support to effectively address the problems. Hemenway outlines several aims of a public health approach to gun violence, a few of which are listed below:

• Add new analytic tools, new research sources, and professionals from public health and medical communities to gather scientific knowledge about gun violence and to create programs to combat it
• Mobilize national, state, and local governmental and nongovernmental agencies to work to reduce gun violence
• Create a new government agency empowered to regulate firearms as a consumer product and to maintain a national death-data system that will track gun fatalities of all types
• Strengthen the systematic effort to stop the supply of guns to criminals, through gun tracing and other methods, instead of focusing only on locking up criminals after a crime is committed
• License and register all gun owners, thus allowing officials to track all legal firearm transfers
• Change the belief that gun violence is a part of the national culture and cannot be altered

To reduce the problem of gun violence, Hemenway proposed a public health approach that "not only urges multiple strategies but also recognizes the importance of mobilizing many partners." He concluded that the public health approach is ideally suited to deal with gun violence:

Public health emphasizes prevention rather than fault-finding, blame, or revenge. It uses science rather than belief as its basis and relies on accurate data collection and scientific analysis. It promotes a wide variety of interventions—environmental as well as individual—and integrates the activities of a wide variety of disciplines and institutions. Most important, public health brings a pragmatic attitude to problems—finding innovative solutions and eliminating the fatalistic and complacent beliefs that little can be done to reduce the problem.