Constitutional interpretation has long been a hotly
contested issue on many fronts, and Amendment 2 is no different. Amendment 2 of 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." It seems the founders of the constitution believed
bearing arms is a fundamental right, but where and when it is
allowed, and whether the issue is under state or federal jurisdiction, is not quite
as clear. Inconsistent case law has also muddied the water on whether people
can bear arms in public and to what extent. Please read the following NPR
article https://www.npr.org/2021/11/03/1049380749/gun-rights-supreme-court-arguments-new-york,
and ponder the following questions:
· Is carrying a firearm outside the home a
constitutional right?
· Based on the 14th amendment, can states
regulate gun control outside the house to protect the state's public safety?
·
Do you agree with John Robert's argument that
second amendment rights should be comparable to first amendment rights, in
terms of a person's right to exercise without limitation?
o
The Second Amendment protects a constitutional
right just as the First Amendment does, Chief Justice John G. Roberts Jr. said.
People seeking to exercise either of those rights, he said, should not have to
demonstrate to the government that they have a good reason or special need to
do so. "You don't have to say, when you're looking for a permit to speak on a
street corner or whatever, that, you know, your speech is particularly
important," he said. "So why do you have to show in this case, convince
somebody, that you're entitled to exercise your Second Amendment right?" Nina
Totenberg, Gun rights are back at the Supreme Court for the first time in
more than a decade, NPR.org (November 3, 2021), https://www.npr.org/2021/11/03/1049380749/gun-rights-supreme-court-arguments-new-york.
·
Under the 2nd amendment, should there
be any limitations on what kind of "Arms" you can carry, e.g., machine gun,
flame thrower, grenade launcher?
· What philosophy of interpretation is most appropriate and why?
Below are further readings explaining the contradiction between
the right to bear arms and the right to regulate arms, along with the Supreme Court's
decision-making process:
Saul Cornell, The Right to Regulate Arms in the Era of the
Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil
War America, 55 U.C. Davis L. Rev. Online 65 (2021) https://www.westlaw.com/Document/I5b3a76533d3d11ecbea4f0dc9fb69570/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
Stephanie Cooper Blum, Drying Up the Slippery Slope: A New
Approach to the Second Amendment, 67 Buff. L. Rev. 961, 961 (2019) https://www.westlaw.com/Document/I68643202117a11eaadfea82903531a62/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
Constitutional Law-Second Amendment-Ninth Circuit Panel
Holds Open-Carry Law Infringes Core Right to Bear Arms in Public.-Young v.
Hawaii, 896 F.3d 1044 (9th Cir. 2018), Reh'g En Banc Granted, 915 F.3d 681 (9th
Cir. 2019, 132 Harv. L. Rev. 2066 (2019) https://www.westlaw.com/Document/I510b4ba8777e11e9adfea82903531a62/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
Is carrying a firearm outside the home a constitutional right?
ReplyDeleteAfter reading the NPR article concerning the Supreme Court's decision to review a New York law, I believe the answer to this question requires legal nuance. Firearms have traveled between the interior and exterior of homes for centuries and the case that is at the door step of SCOTUS has to review both the question at hand and the governing body that has to deal with the consequences of their ruling.
Based on the 14th amendment, can states regulate gun control outside the house to protect the state's public safety?
This question is the latter part of the case that is at hand, can New York govern within their jurisdiction without necessarily infringing the supreme law of the land? I do think the example of January 6 that was included in the NPR article is important to highlight, as the District of Columbia had passed statutes that were relevant to their city and population. A ruling from SCOTUS that invalidates local governance would be a contradiction that many conservatives, Republicans, and Second Amendment advocates would have to resolve.
Do you agree with John Robert's argument that second amendment rights should be comparable to first amendment rights, in terms of a person's right to exercise without limitation?
The quote that is cited in this blog post is rebutted by the NPR article when it states that comparing the First to the Second Amendment is not an appropriate assessment. One has words and the other is designed to strike anything living or inanimate, often severely wounding or killing the living or damaging the inanimate.
There is a purpose as to why the First Amendment is the first, and the Second Amendment is the second, they aren't the same.
This is an interesting question and I feel the answer depends. Is this an open carry question or a concealed question? Open carrying of a firearm in a non-hunting situation may cause many people including myself to be uncomfortable. Depending on how and where it happens, it can feel threatening and does not seem like a socially acceptable practice. Concealed carrying allows us to be in denial about who may be carrying. I have always known there are those who conceal carry, but I did not feel threatened or that it was out of place as in those situations I felt ignorance was bliss. Knowing there was a process to be allowed to conceal carry legally helped with that security. Now, with recent law changes, I still feel concealed carry is better than open carry. I do not want to deprive anyone of this right as long as they can carry responsibly.
ReplyDeleteBrody, Great post! I think the comments on this topic from our class will be as conflicted as the Supreme Court has been on their interpretations over time. My comment is on the interpretation of the 2nd Amendment. I think it should be interpreted purposively--the intent of the amendment was to give states a right to protect themselves from invasion, which would identify the right to bear arms as members of a militia and not as private citizens. I believe people have a right to own a gun, but that state laws should govern that right, and carefully protect the public in the laws that are established.
ReplyDeleteI agree with Cristobal -- the first and second amendments are different. Carrying a gun is different than a right to free speech or freedom of religion. (Ask me tomorrow. I may change my mind, just like the courts do ;-))
Thanks for this post, Brody. Well written and thought provoking. I have to confess - I am middle of the fence on this topic. As a young man, I loved shooting my dad's Remington 22 rifle. Then, I loved target practice and shooting clay pigeons. When I began working for the DOJ, and specifically working intimately on violent crimes cases, cases involving acts of violence with the use of firearms, my opinions changed more. I believe individuals have a right to bear firearms. However, I am still middle of the fence with the whole issue of concealment. I concur with the comments above stating the two referenced amendments are different. They were authored by men with vision and inspiration. And Sue's comment about people having the right to own a gun and the public's right to safety is spot on. I firmly believe now, there should be restrictions on the type of weapon you can carry, especially in areas populated by the public.
ReplyDeleteGreat topic Brody. Growing up in Arizona, I was comfortable with people open carrying around me; however, I was never sitting in a crammed subway in New York with people open carrying, so I can understand the worry. I think both sides arguments are valid, and like some of the above comments, I’m on the fence. Regarding New York’s “proper clause law”, I slightly agree with Justice Robert’s comments on limitations. Self-protection isn’t exclusive to store owners, bank messengers, etc. Should local government determine who is “qualified” for self-protection and who is not? Will the local government give the same considerations to people who live in unsafe neighborhoods or women who are victims of intimate partner violence? Should someone even have to state why they want or have the need to carry a gun outside the home? Like most of the comments, I think there should be limitations on the type of “Arms”. Specifically, there is no justifiable reason in my mind for someone to own and carry a grenade launcher.
ReplyDeleteI am with Sue on this one. I think the purpose of the 2nd ammendment is to enable individuals to keep and bear arms to protect them from any sort of invasion. I hesitate to see how carrying a gun anywhere/everywhere reconciles that. For me personally, seeing someone carry a gun always makes me uncomfortable. I just think that it leads to more potentially dangerous situations, rather than "protecting". I think the public's right to safety trumps any individual in this kind of case.
ReplyDeleteThis is definitely a hot topic these days. I must admit I am not very knowledgeable in this area but based on the blog post and the NPR article, I will answer from what I read. I have to agree with the others who have responded, and I think this is one of situations that will take some very careful analysis. I am also one of those individuals that does get uncomfortable when I see guns, mostly because of my limited experience with them. I think Trina makes a good point between open carry vs. conceal carry and I do agree the conceal would probably make majority of the population more at ease. I think drawing the line between who can demonstrate a need for self-protection also leaves a lot for interpretation.
ReplyDeleteI have to admit I didn't know a lot about this issue besides my innate aversion to guns in any other capacity than hunting. Although, I do understand the need for self protection for qualified individuals in certain situations but I do not believe our constitution gives the right for anyone to carry a weapon capable of taking a life. I try to base decisions on statistics and facts, rather than ideology. In this case, statistics do not seem to support carrying guns as a legitimate deterrent of violent crime. Alternatively, statistics seem to support a higher danger for anyone carrying a gun versus the value of protecting themselves from a violent crime. Besides a few fist to fist scuffles, I am very fortunate to have never been in a situation where carrying a gun would have protected me. I feel the odds of me accidently shooting myself, or others, is much higher than the odds the gun I'm carrying saves the day. The constitutional debate is an interesting one. I asked the question of which philosophy of interpretation is most appropriate without having a good answer myself. With that said, I do believe using the originalism philosophy is not appropriate given the narrow applicable geography of the deep South in a time when carrying a gun in public was standard operating procedure. After many devastating incidents of violence and loss of innocent life, states began to regulate gun possession in order to protect the general public. Given the outdated context of the second amendment, I believe amending the constitution to better address the current realities of public safety and the extreme consequences of gun violence should be in order. The need for community militias and the generalities of interpreting the amendment as written, should be addressed. I believe the philosophy of precedent is most appropriate and states should be able to create their own regulations on what is best for the safety of their general public. The 14th amendment should have strict interpretation in regard to public safety given the unique characteristics of each state.
ReplyDeleteThis comment has been removed by the author.
DeleteI am comfortable with guns, well training with proper safety techniques, use of force, and situational awareness, I support the right to constitutional carry/ bear arms.
ReplyDeleteI believe almost any item can be made into a weapon to take the life of another. There is even a reported murder case in England from 1988 where a man was found deceased from a strike to the back of the head, the murder weapon was a pumpernickel bread loaf.
However, I absolutely think there needs to be a limitation on what kind of weapon one can lawfully carry. Having shot a grenade launcher, different calibers of machine guns, and a rocket launcher, I have seen the level of destruction those can cause and the intent with shooting any one of those weapon frames is beyond the scope of a "safety" and well into the realm of obliteration.
Some states, Utah for example, do not require a permit to carry for any one 21 and over who can lawfully possess a firearm, they are legally able to conceal or open carry a loaded firearm in public. This is unnerving to me because a gun is not an object, but a weapon and can be used in malicious or negligent ways. There is no background check required and registration of the firearm at the time of purchase.
The summary of my thoughts here are that the world is black and white but we want to live in the gray.
I don't support any gun rights in public because The U.S. has much more firearm violence than any country. However, it is on our constitutional, and I cannot do anything to change the law.
ReplyDeleteIf people desire to carry a firearm outside the home? The government and NPR need to set a better system to receive a gun and create a safe environment in the U.S. I like how Japan's system of guns is because that country has almost completely eliminated gun deaths.
Japan's process:
Required to attend an all-day class and pass a written test
Required pass a shooting range class
Required pass a mental test and drug test
share the documents in the police's system
Background check for ANY criminal record or association with a criminal or extremist group
Police are required to inspect the gun once per year
re-take the class and exam every three years. [1]
I believe the government and NPR can set a strict screening for citizens who plans to buy and carry a firearm. Also, citizens who already own a firearm need to check-up by annually or three years like Japan's processing.
[1] https://www.vox.com/policy-and-politics/2015/12/4/9850572/gun-control-us-japan-switzerland-uk-canada
Like many who have commented, this is an area that remains ambiguous and vexing in my life. I do not like government regulation. But I realize the necessity of parameters and limitations that infringe on freedoms that are very controversial. I guess we will always argue about these issues. Hopefully continuing the debate will stave off what's is often next in these conflicts; violence and chaos.
ReplyDelete