6-7 con. law
Two opposing legal interpretations of the 2nd Amendment:
1. does the amendment guarantee individual's right to keep and bear arms?Some feel the gov. has become too powerful and the individuals need to reclaim that power with firearms. 2. Does it guarantee the states freedom from federal government infringement on this right? Concerned about mass shootings.
modern day militias
1992-Ruby Ridge─ 1993-the Branch Davidians─ 1996-"Freemen"─ Research shows an increasing amount of heavily armed militia groups.─ The "Patriot" movement conducts paramilitary training and demonizes the federal government.─ Some of these groups are considered domestic terrorist threats.
1996 "freeman"
81 day standoff, FBI v. Montana "freeman" who considered themselves a christian patriot group. Claimed land as their own sovereign nation. Led to our current 2nd amendment debate.
U.S. v. Emerson
A district court went against all federal court precedent and restored a domestic abuser's firearms. Claimed the 2ndAmendment guaranteed the individual's right to keep and bear arms.
Demurrer
A motion to dismiss a case because the claim is legally insufficient.
Prefatory Clause
Announces a purpose but does not necessarily restrict the operative clause. The debate surrounding the 2nd amendment centers around the prefatory clause and the intentions of the founding fathers.
Federal Regulation and the 2nd Amendment
Congress, using its broad authority to regulate interstate commerce, has enacted some federal gun control. ─In 1938, the Federal Firearms Act was passed.oRequired dealers shipping firearms across state lines and importers to be licensed by the federal government. ─In 1967, the Omnibus Crime Control and Safe Street Act was passed.oMade possession of firearms by convicted felons unlawful. ─In 1968, the Gun Control Act was passed.oBanned federal licensees from selling firearms to prohibited persons. ➢Under indictment for or convicted of a felony ➢A fugitive ➢A drug user
Identify who was, historically, included in the militia and what was required of them.
During the country's early years, the militia was considered to be the entire free male citizens population of a state. They were not simply allowed to keep arms but were at times required to do so by law.
Guns, Crime, and Violence
Firearm violence accounted for roughly 70 percent of all homicides from 1993 to 2011 •Law enforcement officers are killed by civilians •Guns are used in many crimes
1992 Ruby Ridge
Idaho, FBI and U.S Marshals were involved in a standoff with an armed family who refused to obey the law. They stated "Tyrant blood shall flow.. War is upon our land." 2 family members and 1 officer died. HOLY DEBATED ACTION.
Operative Clause
Identifies that action to be taken or prohibited.
A Shift in Interpretation:
Since the Miller case in 1939, there have been more than thirty cases involving the 2ndAmendment. ─In every case, except one, the courts have held that the amendment refers to the right to keep and bear arms only in connection with a state militia. U.S v,. Emerson.
Variation in state and local gun laws
States retain the right to impose stricter regulations related to firearms than those required by the federal government. How do states differ? ─Concealed Carry Laws ─Castle Laws ─Restrictions on Types of Firearms
McDonald v. Chicago (2010)
The City of Chicago banned almost all handgun possession by private individuals. ─Mr. McDonald argued that this left him vulnerable to criminals. ─The Supreme Court held that the Second Amendment right to keep and bear arms is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. ---The Second Amendment was unincorporated until 2010. Oak Park
US v. Lopez
The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any individual knowingly to possess a firearm at a place that he knew or had reasonable cause to believe was a school zone. Does the GFSZA exceed Congress' authority under the Commerce Clause? The Supreme Court struck down the GFSZA. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce.
US v. Miller
The Supreme Court recognized a state right rather than an individual right to bear arms. This case indicates that the amendment protects only arms that bear some relation to preserving the militia.
Branch Davidians
cult led by David Koresh, sieged by federal agents, had illegal firearms, building caught fire and no one survived
prohibited person:
individuals to whom, under the gun control act, selling a firearm is forbidden.
The central controversy of the Second Amendment has been whether:
people have the right to bear arms as an individuals, rather than only as part of a milita.
Commerce Clause
provides the legal foundation for much of the federal government's regulatory authority. ----Grants Congress the power "to provide for the calling forth of the Militia to execute the laws of the Union." ─The purpose of the amendment is obviously to "assure the continuation and render possible the effectiveness of such forces."
dictum
statements by a court that do not deal with the main issue in the case or an additional discussion by the court.
Presser v. Illinois
the court refused to incorpoate the 2nd amendment into the fourteenth amendment. Presser was part of a citizen military group , socialist labor party. did a parade in Chicago with men and guns.. Found guilty ten dollar fine.
Will there be an agreement??
•Gun control by the states is not constitutionally prohibited. •Legislation by the federal government is not prohibited. •It looks like the courts will continue to defer to the discretion of the states on gun control matters.
The Current gun control debate: In Support of Gun Control:
─Advocates refer to this issue as "crime control" not "gun control." ─History shows that the Second Amendment was written to protect colonists from England's King George III's military forces and contains nothing that could be constructed today as prohibiting gun control. ─Advocates criticize the ability of some to circumvent the law.
The Law Enforcement Officers Safety Act
─Allows qualified off-duty and retired officers to carry concealed weapons throughout the country, regardless of state or local firearms restrictions. ─Goals To establish equality between local LEOs and their federal counterparts who already carry nationwide. To create an unpaid homeland security force to help protect the nation. To allow qualified current and retired LEOs the means to defend themselves and their families.
The Violent Crime Control and Law Enforcement Act of 1994
─Banned the manufacture of nineteen different semiautomatic guns with multiple assault-weapon features. ─Prohibits transfer to or possession of handguns and ammunition by juveniles. ─Prohibits possession of firearms by people who have committed domestic abuse. ─Provides stiffer penalties for criminals who use firearms to commit federal crimes. ─Expired with a Sunset Clause, a set ending time for legislation that is not renewed to prevent old law from remaining on the books.
Other proposed federal legislation
─Denying Firearms and Explosives to Dangerous Terrorists ActoWent nowhere in 2009 and was reintroduced in 2015 Aims to prohibit those who are on the terror watch list from purchasing firearms. ─Protection of Lawful Commerce in Arms Act of 2005 Prohibited lawsuits against gun manufacturers and dealers for damages resulting from use of their products. ─Gun Show Loophole Closing Act of 2009- Collin Godard.. Shot 4 times. went undercover ini gun shows.. for evidence.
The Brady Act
─On November 30, 1993, President Clinton signed the Brady Handgun Violence Prevention Act. ─Contained the interim provision of a mandatory five-day waiting period on all handgun purchases. ─This provision was phased out in 1998 with the permanent provision of an instant, computerized criminal background check on all handgun purchasers, except those made at gun shows. ─Some states still impose a waiting period on firearms purchases.
State's Rights Cont.
─Proponents claim that the 2ndAmendment was adopted with the primary purpose of preserving the state militia. ─The courts have consistently interpreted the 2nd Amendment as allowing states to regulate private gun ownership. ─The amendment preserves the state's power to defend against foreign and domestic enemies, and it also reduces the need for a large standing army.
The Current gun control debate: In opposition to gun control
─The common argument about gun control is the claim that such laws will only put guns where they do not belong—in criminal's hands. ─The founding fathers wrote the Second Amendment to protect citizen's right to defend themselves against oppression. ─When people are disarmed, government tyranny and oppression thrive.
Sates' Rights
Those favoring the state's rights interpretation see the 2ndAmendment as protecting and modifying Article 1, Section 8 of the Constitution. Commerce Clause.
Modern Milita
Today the military is considered to consist of the National Guard Units in every state. Armed with gov. supplied weaponry. Also the U.S has a standing army, mooting the need for a widespread armed citizenry on call.
U.S. v. Cruikshank
U.S Supreme Court, responding to the claim that the right to bear arms for a lawful purpose.. District ruled this isn't granted buy the constitution.. it just shall not be infringed upon by congress."
Columbia v. Heller
Until 2008, the Supreme Court interpreted Second Amendment to mean there was no Constitutional right to keep and bear arms outside the context of a state militia; This case(2008) overturned this interpretation. Is the Second Amendment violated by a provision of the D.C. code that bans the possession of functional handguns in the home?Yes. The Supreme Court held that the Second Amendment protects an individual's right to possess a handgun in one's home and use it for traditionally lawful purposes, regardless of any connection to the militia.
The National Firearms Act of 1934
Was established because the federal government made an effortto regulate the possession of firearms. ─This act was the first in federal regulation.
Castle laws
a legal claim base don English common law that designates one's place of residence as a place in which one enjoys protection from illegal trespassing and violent attack.
Sunset Clause
a set ending time for legislation that is not renewed to prevent told law from remaining on the books.
Militia
an armed group of citizens who defend their community as emergencies arise.
Straw Purchase
an illegal transaction when a buyer uses an intermediary to purchase a firearms from a licensed firearms dealer and then sells the weapon to individuals who cannot legally buy huns themselves, such as felons, and mentally ill.
Variation in state and local gun laws: Restrictions
-----Some weapons, such as fully automatic machine guns or those altered to be more conducive to criminal activity, such as sawed-off shotguns, have always been illegal for most people to own. ─What exactly constitutes a weapon or firearm has not been easily defined.
2nd Amendment
Right to keep and bear arms in order to maintain a well regulated militia.
The phrasing Clauses of the 2nd amendment into 2 parts is what causes the biggest debate..
Operative Clause, Prefatory Clause
Individual Rights perspective
Proponents of "the right to bear arms" endorse an individual rights interpretation that would guarantee that right to all citizens. ─These proponents see the amendment as primarily guaranteeing the right of the people, not the states. They also claim that the framers of the constitution intended to preserve individual rights above state rights. ----The courts throughout history have consistently rejected the individual rights view in favor of the state's rights interpretation.
