NCJ Number
47857
Journal
North Carolina Central Law Journal Volume: 8 Dated: (SPRING 1977) Pages: 189-198
Date Published
1977
Length
10 pages
Annotation
PROBLEMS POSED BY QUESTIONS OF THE CONSTITUTIONALITY OF LEGISLATION TO CONTROL THE SALE AND USE OF HANDGUNS ARE DISCUSSED WITH REFERENCE TO CASE LAW INVOLVING THE SECOND AMENDMENT.
Abstract
THE AMENDMENT CONTAINS A CLAUSE WHICH IS INTERPRETED IN MANY DIFFERENT WAYS; GROUPS FOR AND AGAINST GUN CONTROL EACH CLAIM IT AS EVIDENCE FOR THEIR SIDE. THOSE AGAINST GUN CONTROL SAY THAT THE AMENDMENT GUARANTEES EACH INDIVIDUAL CITIZEN THE RIGHT TO OWN GUNS, AND THIS RIGHT LEGALLY CANNOT BE TAKEN AWAY. THIS GROUP ALSO CONTENDS THAT THE RIGHT TO BEAR ARMS IS THE CORNERSTONE OF FREEDOM. HOWEVER, THIS ARGUMENT IS OVERLY SIMPLISTIC. THE AMENDMENT WAS INTENDED TO REFER TO THE RIGHT OF MEMBERS OF A WELL-TRAINED MILITIA TO BEAR ARMS. THE WHOLE ARGUMENT MUST BE TAKEN IN THE CONTEXT OF THE TIME, WHEN THE AMENDMENT WAS WRITTEN, WHEN EVERY CITIZEN WAS CONSIDERED A MEMBER OF THE MILITIA, AND WHEN BAD FEELINGS LINGERED CONCERNING ENGLAND'S STANDING ARMY. THE FRAMERS OF THE CONSTITUTION THOUGHT THAT GIVING A MILITIA THE RIGHT TO BEAR ARMS WOULD GIVE LOCAL GOVERNMENTS A CHECK ON THE POWER OF THE FEDERAL GOVERNMENT. A REVIEW OF CONSTITUTIONAL CASE LAW INVOLVING THE SECOND AMENDMENT SHOWS THAT THE RIGHT OF A CITIZEN TO KEEP FIREARMS IS NOT ABSOLUTE. IN U.S. V. MILLER (1939), THE RIGHT OF THE FEDERAL GOVERNMENT TO REQUIRE FIREARM REGISTRATION WAS UPHELD. SUPREME COURT DECISIONS SUPPORTING THE MAINTENANCE OF A MILITIA CANNOT BE CONSTRUED AS SUPPORTING ANY INDIVIDUAL AND ABSOLUTE RIGHT TO BEAR ARMS. OTHER DECISIONS MAKE REFERENCE TO THE TYPE OF WEAPON, RULING THAT A SAWED-OFF SHOTGUN OR A HANDGUN ARE NOT CONSIDERED TO BE THE WEAPONS OF A MILITIA, AND CONSEQUENTLY THEIR POSSESSION IS NOT PROTECTED BY THE CONSTITUTION. THE AUTHOR CONCLUDES THAT CONTROL AND SALE OF HANDGUNS CANNOT BE REGULATED SOLELY BY FEDERAL LEGISLATION; THERE MUST BE A COORDINATED EFFORT BETWEEN FEDERAL, STATE, AND LOCAL GOVERNMENTS TO ENACT AND ENFORCE LAWS. THE FEW EXISTING LOCAL LAWS FAIL BECAUSE OF THEIR LIMITED SCOPE. IT IS RECOMMENDED THAT STATE LEGISLATION BAN THE IMPORTATION, MANUFACTURE, SALE, OR POSSESSION OF HANDGUNS AND HANDGUN AMMUNITION EXCEPT IN SPECIFIED CASES UNDER CONTROLLED CONDITIONS (E.G., MILITARY, POLICE, AND REGULATED COLLECTORS). WHILE GENERAL CONFISCATION IS NOT REALISTIC, ILLEGAL GUNS CONFISCATED BY LAW ENFORCEMENT OFFICIALS IN THE LEGAL PERFORMANCE OF THEIR DUTIES SHOULD BE DESTROYED. (BAC)