The Second Amendment

The Second Amendment to the United States Constitution is discussed often in political debates. It’s generally a pretty controversial topic. Different states have different laws regarding the regulation of firearms. However, the states cannot restrict the rights the Constitution gives. The states can regulate, but they cannot take away the right to bear arms unless the Supreme Court of the United States interprets the Second Amendment to mean that guns are not for the public. There have been numerous supreme court cases that caused the court to examine the Second Amendment. The Second Amendment reads, “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,” (The Bill of Rights, 2017). Each time that the court heard a Second Amendment case they had to interpret the Amendment. Some justices interpret the Second Amendment to protect the military’s right to bear arms. Others interpret it to mean anyone able-bodied. Each time this happened the Second Amendment was affected in some way until the court arrived at the interpretation it has today. However, states can still pass legislation that affects the process of buying, selling, or keeping firearms, but they cannot get rid of the right completely.

United States v. Cruikshank 92 U.S. 542 (1876) established that the First Amendment and the Second Amendment only applied to the federal government, not states or individuals. States could still form legislation surrounding guns within their own borders. The court argued that the Second Amendment only kept Congress from infringing on the right to bear arms but that the amendment did not provide the right (Nelson, Denson, Pal, Ohanu, & Anand). During the reconstruction era protecting the rights of the newly freed slaves was important because people still thought that they shouldn’t have rights or be free. Congress created the Enforcement Acts to allow the president to legally enforce the rights of the freemen afforded to them in the constitution. The court declared these acts unconstitutional because they didn’t apply the Fourteenth Amendment. Even though Cruikshank and others massacred over 100 men, they got off on these technicalities. Despite being convicted in lower level courts, Cruickshank was not punished. This case declared the Enforcement Acts unconstitutional and interpreted the Second Amendment to mean that Congress could not infringe on the people’s right to bear arms but did not necessarily guarantee that right.

Presser v. Illinois 116 U.S. 252 (1886) followed after the ruling in Cruikshank. Presser formed a fraternal organization that marched with arms (Skelton). Presser was convicted under an Illinois statute that prohibited marching with arms with any group that was not the organized militia or the military. Presser appealed arguing that it violated his Second and Fourteenth Amendment rights. The court held that the Second Amendment only kept Congress from infringing on people’s right to bear arms or to a well-regulated militia. Justice William B. Wood wrote the majority opinion and argued that the Second Amendment only applied to the federal government (Skelton). The decision was unanimous that only the federal government must refrain from infringing on the right to bear arms and since they did not apply the Fourteenth Amendment, the Second Amendment didn’t affect the states’ legislation surrounding firearms. The Second Amendment did not keep the states from regulating the right to bear arms. This case shows the courts’ initial reluctance to use the Fourteenth Amendment to apply the Bill of Rights to the states.

US v. Miller 307 U.S. 174 (1939) determined that the Second Amendment does not provide an absolute right to bear arms. Jack Miller and Frank Layton violated the National Firearms Act when they drove across state lines with a sawed-off double-barrel 12-gauge. Miller and Layton argued that the National Firearms Act violated their Second Amendment rights. The lower court dismissed the case since they agreed. The Supreme Court reversed the district court. Justice James Clark McReynolds wrote for the majority. The court argued that a sawed-off double-barrel shotgun was not guaranteed to the individuals by the Second Amendment. The decision on this case was unanimous because all of the justices agreed that a sawed-off double-barrel shotgun did not have a reasonable relationship to the preservation or efficiency of a well-regulated militia (United States v. Miller). The Second Amendment does not provide a right to possess that type of firearm. This case changed the Second Amendment from a right to bear arms to a right to bear certain arms. It allowed the Federal government to disallow some types of firearms like a sawed-off double-barrel 12-gauge shotgun.

Attorney General John Ashcroft wrote his opinion on the Second Amendment in 2002 (Hallbrook, 2004). The Attorney General is the head of the Department of Justice. The Attorney General represents the United States in legal matters, advises the president and other heads of executive departments when requested. The Attorney General will also appear in person before the Supreme Court in critical situations (About the Office, 2015). Attorney General Ashcroft wrote his opinion on the Second Amendment to advise the court. In his statement, he said that the Second Amendment applied to all individuals since the rights in the constitution are not collective, and the militia referred to all able-bodied men when the amendment was written. Ashcroft’s papers argued that the Second Amendment protected each person’s right to bear arms. He did say that there were some limitations; for example, felons and mentally disabled people cannot own firearms. Ashcroft’s paper argued that rights in the constitution are not collective. The Second Amendment applied to each able-bodied, non-criminal individual.

District of Columbia v. Heller 554 U.S. 570 (2008) brought the Second Amendment to the court’s attention once again. Dick Anthony Heller applied for a one-year license to have a handgun in his home from the District Columbia chief of police. He was denied. Heller sued the District of Columbia for violating his Second Amendment rights. Heller wanted an injunction against the provisions that made it illegal to have a functional handgun in his home for self-defense. The District Court for the District of Columbia dismissed the complaint. The U.S. Court of Appeals for the District of Columbia Circuit reversed and held that the Second Amendment should protect the right to own a firearm for self-defense and the provisions that made it illegal to have a functioning firearm in the home were unconstitutional (District of Columbia v. Heller). This case applied the Second Amendment to individuals on a federal level. However, the Second Amendment is not unlimited, and there are still restrictions in example felons cannot own a gun. Justice John Paul Stevens dissented saying that the Second Amendment did not provide an unlimited right to own firearms for self-defense purposes. He wrote that the most natural reading of the Second Amendment protects the right of the military to keep and bear arms.

McDonald v. City of Chicago 561 U.S. 742 (2010) caused the court to review the Second and Fourteenth Amendments together. The court’s decision was 5-4. Justice Samuel Alito wrote for the majority. He wrote that the Due Process Clause of the Fourteenth Amendment would incorporate the right to bear arms that were recognized in Heller. The supreme court held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for self-defense applicable to the states (McDonald v. Chicago). The dissenting justices argued that the Second Amendment was not a “liberty” interest protected by the Due Process Clause of the Fourteenth Amendment. This case applied the Second Amendment to the States and caused them not to be able to regulate the right to bear arms with no regulations.

Governor Greggory Abbot signed Senate bill 11 that allowed people to conceal carry a firearm on a public university’s campus in 2015. This bill allows people to carry their weapon on campuses as long as the weapon is not visible, the person has a conceal to carry license, is 21 years old or older, has received training from an instructor certified by the Texas Department of Safety and meets the federal qualifications to own a firearm. The law went into effect on August 1, 2016 (Campus carry). Certain areas on a college campus can be declared gun-free zones. The zones have to be clearly marked on the buildings and the campus map. Universities can keep students living on campus from keeping their firearms in the dorm because there is not a safe place to store them. State laws still ban carrying weapons into campus hospitals and sporting events. The law does not allow open carry nor does it allow intoxicated persons to carry a weapon.

Texas Wesleyan opted out of campus carry. Other colleges (mostly public) have campus carry. However, there are still some exceptions. Guns are still banned from sporting events, campus hospitals and most schools that allow campus carry also allow their professors to declare their offices gun free. Private universities had the option to keep guns off campus, but they had to have open forums to allow people to voice their opinions before deciding one way or the other. In fall 2015 and spring 2016 Wesleyan held several of these open forums. Some people said that allowing people licensed to carry a gun to carry guns on campus would make the school a safer place for everyone. They argued that the criminals would already be bringing guns on campus and that with school shootings on the rise having armed students or faculty on campus would be safer.

Others weren’t so sure. Guns scared them. Wesleyan had been doing well without guns on campus and allowing them on campus would create more opportunities for things to get violent. People argued that students our age aren’t always in the best place mentally and shouldn’t be allowed to have a gun on campus. Even though Texas Wesleyan is a dry campus, it doesn’t mean there isn’t anyone drinking in the dorm. People break the rules all the time, but if Wesleyan has the policy in place, they can protect the institution regardless. It could potentially create massive problems on campus if even one firearm were misused. However, in the event of an active shooter or mugging, it could help protect someone.

Texas Wesleyan decided against campus carry because the Board of Trustees and President Slabach decided that keeping guns off of the campus was best for the University. However, they did not just say “NO GUNS” and go on. They increased security; they started ensuring all the gates are locked at night. They asked Fort Worth police to help patrol the school at night time. The school officials decided that campus carry wasn’t the right choice for Wesleyan, but they added more security measures. Campus carry might work great for other schools, but it probably seemed like more trouble than it was worth to the Board of Trustees at Texas Wesleyan University.

The Second Amendment of the United States Constitution is typically debated a lot. Usually, people feel very strongly against or in support of the Second Amendment. Most states have specific laws regarding the regulations of firearms within their own borders. However, the states cannot restrict the rights the Constitution gives. The states can have different rules on the regulations, but they cannot take away the right to bear arms due to the Fourteenth and Second Amendments. There have been many cases that cause the Second Amendment to be brought in to question. Each of these cases has affected the way the Second Amendment is interpreted and enforced today. The Second Amendment says that a well-regulated militia is necessary to keep the country free and safe so the right to keep and bear arms will not be taken away. Each interpretation of the amendment caused the court to examine what the writers of the constitution originally meant and how that meaning should be put into practice today.