The 2nd Amendment
The 2nd Amendment was created to (1) provide Americans the right and means to protect themselves and (2) to serve in local militias for the "common defense". A military force belonging to a government which was highly opposed by the people of the American colonies was forcing unwanted control. To stop this, militias were needed and began to form. So, to protect these militias the 2nd Amendment was included in the Bill of Rights.
The Right stayed after the Revolutionary War for two reasons: to allow the American people to continue to safeguard America should the British forces (or any other opposing force) return and to allow the American people to protect themselves from their own newly established government. The founding fathers realized that it was impossible to predict the future of any government so they recognized the people’s right to protect themselves from a potential tyrannical government in the future.
The current position of both the U.S. Congress and U.S. Supreme Court is that the 2nd Amendment serves two purposes: 1) to provide Americans the right and means to defend their homes and persons and 2) to provide Americans the right to protect themselves from a tyrannical government and/or opposing military force.
The Right stayed after the Revolutionary War for two reasons: to allow the American people to continue to safeguard America should the British forces (or any other opposing force) return and to allow the American people to protect themselves from their own newly established government. The founding fathers realized that it was impossible to predict the future of any government so they recognized the people’s right to protect themselves from a potential tyrannical government in the future.
The current position of both the U.S. Congress and U.S. Supreme Court is that the 2nd Amendment serves two purposes: 1) to provide Americans the right and means to defend their homes and persons and 2) to provide Americans the right to protect themselves from a tyrannical government and/or opposing military force.
LEGAL HISTORY OF GUN CONTROL
National Firearms Act of 1934
The National Firearms Act was passed in 1934. Its purpose was to impose a prohibitive tax on the transfer of firearms to hinder criminal activity (Source 1).
Federal Firearms Act of 1938
A few years after the NFA was signed the next gun control law was passed. The Federal Firearms Act of 1938 imposed licensing requirements on gun manufacturers and dealers and prohibited licensees from shipping firearms to certain people. (Source 2).
Gun Control Act of 1968
During the height of the Vietnam War the Gun Control Act of 1968 was passed. This law strengthened licensing requirements and expanded the categories of persons prohibited from possessing firearms (Repealed on December 16, 1068). (Source 3)
Firearm Owners Protection Act of 1986
This law amended the Gun Control Act of 1968 to redefine "gun dealer," excluding those making occasional sales or repairs. It also exempted certain activities involving ammunition from current prohibitions. It revised the current prohibition against the sale of firearms or ammunition to certain people. And, it made it unlawful for any individual to transfer or possess a machine-gun.
(Source 4)
Brady Handgun Violence Prevention Act of 1993
Six years after the attempted assassination of Ronald Reagan, the Brady Act was introduced to the the U.S. Congress. This act was finally passed in 1993 and requires federal firearms licensees to conduct a background check on prospective gun buyers before making a sale. (Source 5)
1939 Supreme Court Ruling (United States v. Miller, 307 U.S. 174)
This case was the direct result of the enactment of the National Firearms Act of 1934 discussed above. The issue was the enforcement of banning shotguns with barrels of lengths of less then 18 inches. The argument was that this regulation violated the 2nd Amendment right to keep and bear arms. The Supreme Court ruled that this regulation was permitted because a shotgun with less then an 18 inch barrel has no "...reasonable relationship to the preservation or efficiency of a well regulated militia...". Part of their reasoning was primarily based on the fact that these weapons are not "...any part of the ordinary military equipment, or that its use could contribute to the common defense." (Source 6)
2008 Supreme Court Ruling (District of Columbia v. Heller, 554 U.S. 570)
In 2008, the Supreme Court made a unanimous decision that gun ownership was not predicated on militia service. In other words, you did not have to serve in law enforcement and/or military to be able to own a gun. Additionally, they recognized the 2nd Amendment as protecting an individual's right to possess a gun for personal protection. Finally, the ruling did sustain the government's ability to regulate the 2nd Amendment. They recognized that “... the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (Source 7)
Noteworthy Federal Appellate Court Rulings
United States v. Emerson 270 F.3d 203, 260 (5th Cir. 2001) (This was the first time a federal court had ruled an opinion that the Second Amendment "protects the right of individuals, including those not actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons." After the decision was issued, the Attorney General adopted it as the position of the United States.)(Source 8)
The National Firearms Act was passed in 1934. Its purpose was to impose a prohibitive tax on the transfer of firearms to hinder criminal activity (Source 1).
Federal Firearms Act of 1938
A few years after the NFA was signed the next gun control law was passed. The Federal Firearms Act of 1938 imposed licensing requirements on gun manufacturers and dealers and prohibited licensees from shipping firearms to certain people. (Source 2).
Gun Control Act of 1968
During the height of the Vietnam War the Gun Control Act of 1968 was passed. This law strengthened licensing requirements and expanded the categories of persons prohibited from possessing firearms (Repealed on December 16, 1068). (Source 3)
Firearm Owners Protection Act of 1986
This law amended the Gun Control Act of 1968 to redefine "gun dealer," excluding those making occasional sales or repairs. It also exempted certain activities involving ammunition from current prohibitions. It revised the current prohibition against the sale of firearms or ammunition to certain people. And, it made it unlawful for any individual to transfer or possess a machine-gun.
(Source 4)
Brady Handgun Violence Prevention Act of 1993
Six years after the attempted assassination of Ronald Reagan, the Brady Act was introduced to the the U.S. Congress. This act was finally passed in 1993 and requires federal firearms licensees to conduct a background check on prospective gun buyers before making a sale. (Source 5)
1939 Supreme Court Ruling (United States v. Miller, 307 U.S. 174)
This case was the direct result of the enactment of the National Firearms Act of 1934 discussed above. The issue was the enforcement of banning shotguns with barrels of lengths of less then 18 inches. The argument was that this regulation violated the 2nd Amendment right to keep and bear arms. The Supreme Court ruled that this regulation was permitted because a shotgun with less then an 18 inch barrel has no "...reasonable relationship to the preservation or efficiency of a well regulated militia...". Part of their reasoning was primarily based on the fact that these weapons are not "...any part of the ordinary military equipment, or that its use could contribute to the common defense." (Source 6)
2008 Supreme Court Ruling (District of Columbia v. Heller, 554 U.S. 570)
In 2008, the Supreme Court made a unanimous decision that gun ownership was not predicated on militia service. In other words, you did not have to serve in law enforcement and/or military to be able to own a gun. Additionally, they recognized the 2nd Amendment as protecting an individual's right to possess a gun for personal protection. Finally, the ruling did sustain the government's ability to regulate the 2nd Amendment. They recognized that “... the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (Source 7)
Noteworthy Federal Appellate Court Rulings
United States v. Emerson 270 F.3d 203, 260 (5th Cir. 2001) (This was the first time a federal court had ruled an opinion that the Second Amendment "protects the right of individuals, including those not actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons." After the decision was issued, the Attorney General adopted it as the position of the United States.)(Source 8)
sOURCES
- National Firearms Act of 1934. (1934). Retrieved from https://www.gpo.gov/fdsys/pkg/USCODE-2011-title26/pdf/USCODE-2011-title26-subtitleE-chap53.pdf.
- Federal Firearms Act of 1938. (1938). Retrieved from https://www.law.cornell.edu/uscode/text/15/901?qt-us_code_temp_noupdates=1#qt-us_code_temp_noupdates.
- Gun Control Act of 1968. (1968). Retrieved from https://www.gpo.gov/fdsys/pkg/STATUTE-82/pdf/STATUTE-82-Pg1213-2.pdf.
- Firearms Owners' Protection Act. (1986). Retrieved from https://www.congress.gov/bill/99th-congress/senate-bill/49.
- Brady Handgun Violence Prevention Act of 1993. (1993). Retrieved from https://www.congress.gov/103/bills/hr1025/BILLS-103hr1025enr.pdf.
- United States v. Miller, 307 U.S. 174. (1939). Retrieved from https://www.supremecourt.gov/opinions/07pdf/07-290.pdf.
- District of Columbia v. Heller, 554 U.S. 570 (2008). Retrieved from https://www.supremecourt.gov/opinions/07pdf/07-290.pdf.
- United States v. Emerson 270 F.3d 203, 260 (5th Cir. 2001). Retrieved from https://www.justice.gov/osg/brief/emerson-v-united-states-response.