Café Politique – The Second Amendment

By Clodomiro Cafolla, Postgraduate and International Resident Tutor and Alice Keith, MA History.

Following the very successful Café Scientifique platform as a way to discuss hot topics in science, we have now extended the format to political themes. Over the year, Café Politique discussions have helped us to explore the advantages and drawbacks of written constitutions at the very basis of any political and legal systems, as well as their implications and consequences.

The very first Café Politique took place on Sunday 10^th November 2019. Miss Alice Keith, a Master’s student in History from Virginia (USA), and myself, discussed the Second Amendment to the US Constitution from both an American and a European perspective. The amendment was ratified in 1791 as part of the Bill of Rights, protecting the right to keep and bear arms: “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”¹.

Alice stressed the historical reasons behind such an amendment. The Founding Fathers of the United States were influenced by the recent war against England for independence and were concerned about political corruption and governmental tyranny². Alice also gave an insight on some of the most important Supreme Court legal cases which enforced the individual right to bear arms while also confirming constitutional regulation.  

In Nunn v The State of Georgia (1846), the Supreme Court ruled that state firearm regulation is constitutional as long as it does not prevent an individual from exercising their natural right of self-defence or their constitutional right to keep and bear arms³. In US v Miller (1939), the Supreme Court upheld the National Firearms Act of 1934, which implemented firearm registration, taxation and regulations for transferring ownership. The court also stated that the Second Amendment did not guarantee the individual right to keep and bear arms unnecessary for the upkeep of a militia⁴.

The most recent key cases, District of Columbia v Heller (2008) and McDonald v City of Chicago (2010), are related. In 2008, the Supreme Court reviewed a D.C. law which effectively banned handguns by criminalizing unregistered firearms and prohibiting handgun registration. The same law required lawfully owned firearms to be kept unloaded and disassembled or trigger-locked. The Court upheld an individual’s right “to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defence within the home”⁵. The law was unconstitutional because handguns are the preferred home self-defence firearm and the storage requirements prevented using firearms for lawful self-defence within the home. The ruling also stated that Second Amendment rights were not unlimited and reaffirmed the constitutionality of regulating the Second Amendment⁶. In 2010, the Supreme Court confirmed that the right to keep and bear arms for self-defence affirmed in 2008 also applied to the states. This was necessary because D.C. is not a state⁷.

We then considered how the clauses of the constitution are implemented into the legislation of different states. Interestingly, the death rates are strongly correlated to the regulations each state adopts. As clearly shown by the figure below, the stricter the regulations, the lower the rate of gun deaths⁸. Furthermore, state laws restricting firearms have been shown to be significantly associated to a decrease in suicide rate in both men and women⁹.

Indeed, different states have profoundly diverse requirements for any individuals wishing to own a gun. On the one end of the spectrum, there is Texas. Here, prospective gun owners need to generally take only one step, that is, to pass an instant background considering criminal convictions, domestic violence and immigration status. However, there are no background checks for private sales and gun shows¹⁰. Furthermore, there are no laws on state permit, and no laws on assault weapons^11-12.

On the opposite end of the spectrum, we find California. Here, any qualified applicants need to register their guns and there is a background check even for private sales^13-14. Furthermore, there are limitations on assault weapons, open and concealed carry¹⁴.

After an intense discussion, the audience ended up agreeing on the mere Second Amendment to the Constitution not being the main reason behind gun deaths, but rather its implementation in current legislation plays a significant role in gun related fatalities. Strict requirements still guarantee the individual right of bearing a gun, but also help substantially reduce gun deaths.

References

1. Jillson, C. (2013). American government: Political development and institutional change. Routledge.
2. Cornell, S. (2008). A well-regulated militia: The founding fathers and the origins of gun control in America. Oxford University Press.
3. Nunn v The State of Georgia, https://www.constitution.org/2ll/bardwell/nunn_v_state.txt
4. US v Miller, Cornell Law School Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/307/174
5. DC v Heller, Cornell Law School Legal Information Institute, https://www.law.cornell.edu/supct/html/07-290.ZO.html
6. DC v Heller, SCOTUSblog, https://www.scotusblog.com/case-files/cases/dc-v-heller/
7. McDonald v City of Chicago, Casetext, https://casetext.com/case/mcdonald-v-city-of-chicago-08-1521-us?ref=Sb!7KWxzZ
8. Fleegler, E. W., Lee, L. K., Monuteaux, M. C., Hemenway, D., & Mannix, R. (2013). Firearm legislation and firearm-related fatalities in the United States. JAMA internal medicine, 173(9), 732-740.
9. Conner, K. R., & Zhong, Y. (2003). State firearm laws and rates of suicide in men and women. American journal of preventive medicine, 25(4), 320-324.
10. Wintemute, G. J. (2013). Comprehensive background checks for firearm sales. Reducing gun violence, 95.
11. Giffords Law Center, https://lawcenter.giffords.org/gun-laws/state-law/texas/
12. Roskam, K., & Chaplin, V. (2017). The gun violence restraining order: an opportunity for common ground in the gun violence debate. Dev. Mental Health L., 36, 1.
13. Giffords Law Center,  https://lawcenter.giffords.org/categories-of-prohibited-people-in-california/
14. Giffords Law Center,  https://lawcenter.giffords.org/gun-laws/state-law/california/

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