Meaning and Intentions of the Second Amendment Term Paper

Pages: 18 (5773 words)  ·  Bibliography Sources: 8  ·  Level: College Senior  ·  Topic: Law - Constitutional Law

SAMPLE EXCERPT:

[. . .] 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 arms against both foreign and domestic forces. Whether this is the way in which the Second Amendment should be interpreted today is a subject of debate.

To understand the original intentions behind the Second Amendment, an analysis of the issues that prompted its adoption is essential. While the meaning of this sentence is not self-evident, it was widely accepted because of unanimous agreement that the federal government should not have the power to violate people's right to keep and bear arms (Glum par, 3). This was on similar premise that the federal government should not have the power to breach freedom of speech or ban free exercise of religion.

Heller and Mcdonald Cases

Following the adoption of the Second Amendment, the U.S. Supreme Court became involved in its interpretation more than a century later. In its decisions in 1875 and 1886, the court ruled that this amendment did not restrict individuals but limited the state and federal governments. However, there was a differing opinion in 1939 when justices held that unregistered, sawed-off shotguns were not protected under the Second Amendment. In 2008, the Supreme Court ruled that the capital could not prohibit handguns since the Constitution did not permit absolute ban of handguns that are held and utilized for self-defense at home. These varying rulings show the differing opinions provided by the Supreme Court regarding the interpretation and meaning of the Second Amendment. However, the court has made two landmark rulings on the possible meaning of the Second Amendment in the following cases...

Heller v. District of Columbia

District of Columbia v. Heller was a case heard in 2008 by the Supreme Court and reversed a precedent that stood for approximately 70 years, which was established by the same court in United States v. Miller (307 U.S. 174) in 1939. The case involved a law in District of Columbia that prohibited the possession of all handguns, and all other firearms were to be kept unloaded and disassembled when not in use. The legislation criminalized carrying an unregistered firearm and banned the registration of handguns. However, the law authorized police chief to grant 1-year licenses since no individual was allowed to carry an unlicensed gun.

Dick Heller, a police officer in the District of Columbia applied to register a handgun he wanted to keep at home but his application was rejected. Heller challenged the law by filing a lawsuit that sought to enjoin District of Columbia from enacting the prohibition on registration of handguns. Moreover, he sought to enjoin the city from implementing laws that prohibited carrying an unlicensed firearm in the home based on the licensing requirement and use of functional firearms in the home based on the trigger-lock requirement ("DISTRICT Of COLUMBIA v. HELLER" par, 1). Heller filed his lawsuit on Second Amendment grounds that secure an individual right to keep and bear arms.

The District Court dismissed the case, a decision that was later reversed by the Circuit court in the city. The Circuit reversed the decision on the premise that the Second Amendment safeguards the right of an individual to possess firearms. Therefore, District of Columbia's absolute prohibition on handguns and requirement that firearms at home should be kept non-functional even in situations for self-defense infringed the Second Amendment.

In a split (5 to 4) decision, the Supreme Court held that absolute prohibition of firearms was unconstitutional since it violated the Second Amendment. This decision was based on the assumption that the Second Amendment protects an individual's right to bear arms separate from service in a militia. Justice Scalia delivered the Court's opinion in which it was argued that the Second Amendment secures an individual's right to bear a firearm unconnected with militia service and to use that weapon for conventionally legitimate reasons like self-defense at home. The majority contended that similar to other rights, the Second Amendment is not unlimited since it does not suggest that individuals should keep and carry weapons in any manner and for whatever reasons. Therefore, the Court's opinion should not be used as the premise for casting doubt on longstanding bans on possession of firearms by the mentally ill and felons, or legislation prohibiting carrying weapons in sensitive settings like government buildings and schools ("DISTRICT Of COLUMBIA v. HELLER" par, 1). These justices also argued that District of Columbia's handgun ban and trigger-lock requirement in relation to self-defense infringed the Second Amendment.

According to the Court's opinion as delivered by Justice Scalia, the Second Amendment's prefatory clause proclaims a purpose but does not restrain or enlarge the operative clause i.e. the second part. In essence, the text and history of the operative clause suggests an individual's right to keep and bear arms. Therefore, the prefatory clause concurs with the Supreme Court's interpretation and application of the operative clause ("DISTRICT Of COLUMBIA v. HELLER" par, 3). The historical context that resulted in the drafting of the Second Amendment was to prevent the government (state or federal) from disarming people in order to disable citizen's militia. The Court's opinion was in line with the historical context of the Second Amendment by helping ensure the government did not disarm people and helping preserve the concept of citizens' militia. The ruling of the Supreme Court in this case was also influenced by the fact that the Second Amendment's interpretation by scholars, courts and legislators throughout its history supported its conclusion. Moreover, the Court's precedents did not dismiss individual-rights interpretation of the Second Amendment by limited the kind of weapon the amendment is applicable to.

The dissenting opinion, which was delivered by Justice Stevens, provided a differing interpretation of the Second Amendment and its application. The dissenting justices argued that this amendment was enacted to secure the right of the people to sustain a well-regulated militia in attempts to prevent the Congress from disarming state militias and threatening state sovereignty. Therefore, the wording of the amendment or arguments provided by its proponents does not show any evidence that the drafters wanted to limit the legislature's authority to regulate the use of firearms by private citizens. In essence, the Second Amendment only secures militia-related interests rather than interests relating to self-defense.

They further argued that the Second Amendment does not suggest that the framers intended to enjoin the common law right of self-defense in the American Constitution. In reference to the ruling in United States v. Miller (1939), the dissenting justices contended that while the amendment secures individual right to keep and bear arms for militia-related reasons, it does not limit the… [END OF PREVIEW]

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