Gun Control and the Second Amendment to the U.S. Constitution: Limiting the Rates of Gun Violence in the U.S.

Introduction

The right to bear arms was granted to the people of the United States in 1791 by the Second Amendment to the U.S. Constitution. Unfortunately, this right is associated with an increased risk of gun violence; the U.S. is stated to have some of the highest firearm-related deaths among the countries with high income. Therefore, it is crucial to consider what measures may be taken in order to introduce more effective gun control and limit the availability of firearms to ex-felons and to individuals with mental health problems without infringing upon the Second Amendment. A number of such measures will be offered in this paper.

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Statement of Purpose

This paper is aimed at studying the problem the high rates of gun violence and gun death in the USA, which have been a persistent issue over a long period of time, and proposing a number of such possible solutions to this problem that will not violate the Second Amendment to the Constitution of the U.S. The offered solutions will mostly be related to gun control, although a number of other proposals might also be made in this paper.

Current Problem

The rates of incidents involving gun violence in the United States are very high. It is noted that during 1997-2013, no fewer than 427,000 people died as a result of being shot with firearms; for comparison, 4586 American soldiers died due to hostilities that took place in Afghanistan and Iraq (Kellermann & Rivara, 2013). It is stated that currently, more than 32,000 Americans die each year due to gun wounds (Kellermann & Rivara, 2013; Weinberger et al., 2015); these are some of the highest rates in the industrialized countries (Weinberger et al., 2015); see also Appendix 1 for comparison. It is also noteworthy that owning a gun is stated to increase the likelihood not only of homicide but of suicide as well (Weinberger et al., 2015).

These numbers corroborate the need to introduce measures which would allow for reducing the number of deaths from gun wounds. In particular, the laws regulating gun control in the U.S. are rather lax. However, according to the Second Amendment to the Constitution of the United States, people are allowed to carry weapons: “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” (“Bearing Arms,” n.d., p. 1361). Therefore, it is clear that if any measures pertaining to gun control are to be introduced, these measures need to comply with the Second Amendment to the Constitution. It is a question, therefore, what can be done in order to decrease the quantity of lethal cases resulting from firearms use.

Proposed Plan

The current study will involve studying scholarly literature and legal cases pertaining to gun control in the U.S., as well as to the limitations of introducing such control imposed by the Second Amendment to the U.S. Constitution. A literature review will be conducted, after which conclusions will be drawn. The offered solutions to this problem will be aimed, in particular, at introducing more efficacious legal control of firearms ownership and carrying. The issue of easy access of ex-felons and people with mental health problems to firearms will also be addressed.

Research Methods

The current paper is based mainly on a review of the scholarly literature. An Internet search was conducted in order to find scholarly, peer-reviewed articles pertaining to the topics of gun control and of the Second Amendment to the U.S. Constitution. The Google Scholar search engine, as well as the university’s library, were utilized. Six articles no older than 2012 were chosen as the main sources for this study. In addition, a number of legal cases related to the topic and mentioned in the articles were also found. The selected literature was thoroughly analyzed, and conclusions regarding the possible measures of gun control were drawn.

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Literature Review

Many authors agree that the gun control measures which exist in the U.S. nowadays fail to provide sufficient protection from cases of firearm injury and death for the society. It has already been stressed that the number of deaths resulting from gun wounds in the U.S. exceeds 32,000 annually, which is one of the highest rates in the industrialized countries (Kellermann & Rivara, 2013; Weinberger et al., 2015). The actual figures of death rates in the U.S. compared to other high-income countries for the year 2010 can be found in Appendix 1 (Grinshteyn & Hemenway, 2016). These figures corroborate the implementation of measures aimed at reduction of the rates of gun violence.

Interpretation of the Second Amendment

Because the Second Amendment to the U.S. Constitution directly regulates the right to use firearms, the literature often stresses that it is paramount to understand what exactly is meant by it. However, the interpretation of this Amendment is associated with numerous controversies. One of the important problems related to the reading of the Amendment is that it is not clear if it permits the use of guns for people only as long as it is necessary for preserving the ability of the population to form a well-regulated militia, and, thus, whether the right granted by this Amendment pertains only to the military use of firearms; or if the use of guns has to be allowed irrespectively of people’s participation in the militia for lawful purposes, such as self-protection (Fischman, 2012; Rosenthal, 2015). Depending on which of the two interpretations of this problem is viewed as true, it might be possible to limit the use of particular types of weapons. However, during the landmark case District of Columbia v. Heller (2008), the Supreme Court of the U.S. ruled out that the Second Amendment is aimed at preserving the right of a person to have a gun in their possession, and that this right need not to be related to the service in the militia; therefore, firearms may be held by civilians for lawful purposes, for instance, in order to defend oneself at home (Fischman, 2012).

Another interpretation problem is related to the source of the possible infringement of the use of firearms. Indeed, the Amendment states that the right to keep and carry arms “shall not be infringed” (“Bearing Arms,” n.d., p. 1361); however, it is not explained clearly who must not introduce such an infringement. This lack of specification has made a number of readings possible. In fact, one of these interpretations was officially adopted by the Supreme Court in 1876, during the case United States v. Cruikshank (1875); it was decided that the right to carry and keep guns cannot be infringed by the federal government, but that the restriction of this right by separate states does not contradict the Second Amendment (Fischman, 2012, p. 1341). Therefore, due to this decision, it is possible for separate states to adopt gun control legislation; however, introducing federal laws for gun control is generally not possible.

Background Checks: Ex-Felons and People with Mental Health Problems

It is stated that one of the major problems pertaining to gun control (or, rather, the lack thereof) is related to the fact that criminal background checks are necessary only in certain cases – when guns are bought in gun stores; no such checks are required when firearms are purchased privately, at gun shows, or from arms dealers (Weinberger et al., 2015). Therefore, it is recommended that a thorough scrutiny of the background of a customer wanting to buy a gun is made obligatory by the law (Weinberger et al., 2015). Such a scrutiny may allow for limiting the use of weapons by individuals who have a criminal background; as will be discussed below, such a restriction should not be viewed as contradictory to the Second Amendment.

Limiting the Right to Use Weapons

Limiting the population that can carry weapons

There exists another aspect of gun control, one that involves limiting the use of weapons in a variety of circumstances. It was decided by the Supreme Court of the U.S. that the use of firearms could be restricted for those who have been convicted as criminals, for individuals who suffer from mental health problems, as well as in “sensitive places such as schools” (Fischman, 2012, p. 1344). The possibility to apply such restrictions, in particular, results from the statement that they have no reasonable connection to the capability of the population to form a well-regulated militia (Fischman, 2012). On the other hand, it might be possible to claim that such limitations also do not contradict the interpretation according to which guns should be a means to protect oneself, for persons who have been convicted of felony might be viewed as those who have the potential of committing further crimes, and are likely to use the weapons for attack rather than defense, whereas those who have mental problems can use the weapons for purposes other than protection due to their condition. In any case, it should be noted that these limitations were ruled out to be non-contradictory to the Second Amendment by the Supreme Court of the U.S. in the case District of Columbia v. Heller (2008).

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Limiting the types of weapons that can be carried

Another issue pertaining to limiting the use of firearms is related to the type of weapons that can be carried. This may be possible if the coverage of the Second Amendment is established in more detail. For instance, it is claimed that a short-barreled shotgun can be prohibited without violating the Second Amendment, for it does not cover this type of firearms (Blocher & Miller, 2016, p. 325).

In fact, recommendations regarding what types of guns should be allowed can be found in the literature. Because it was established by the Supreme Court that the population could carry weapons irrespectively of their service in the militia, for the lawful purposes such as self-defense (see District of Columbia v. Heller, 2008), it is possible to introduce a number of limitations on the kinds of weapons the right to ownership of which the Amendment protects, because not all types of firearms fit the role of a tool of self-defense. In particular, Weinberger et al. (2015) recommend restricting the access to assault weapons, as well as to firearms with large-capacity magazines. The researchers state that, because these weapons are designed to have a massive killing capacity, it is reasonable to assume that limiting their use by civilians will not infringe the ability of the latter to protect themselves, but will decrease the likelihood of mass shootings (Weinberger et al., 2015).

Ways in Which the Weapons Should Be Kept

One more avenue to introducing gun control that would not violate the Second Amendment is related to the way in which arms ought to be stored. It is noteworthy that, according to the decision of the U.S. Supreme Court in the case District of Columbia v. Heller (2008), the requirement to keep firearms in a disassembled state, or to keep them bound by a trigger lock, diminishes the ability of civilians to use these weapons for self-defense, or even totally nullifies it. Therefore, it is impossible to introduce such regulations. Nevertheless, the owners of firearms can still be obliged to keep their weapons in places that are inaccessible to other residents of their homes, such as minors. Controlling the compliance with such requirements could be related to certain difficulties; however, regular checks of the conditions in which the weapons are kept might still be possible. It should be noted that if such measures are capable of reducing the number of deaths from gunfire, it might be worth implementing them.

The outlined measures could be replaced or complemented by introducing the requirement to perform background checks and mental health tests not only of those individuals who wish to purchase weapons but also of the members of their families. For instance, Kellermann and Rivara (2013) report a case of mass shooting in which a man murdered his own mother, then took her guns and used them in order to slaughter a number of people (including children) in a local school. Whereas it is possible that the mother had no background or mental health problems which might justify limiting her access to weapons, it appears likely that her son who performed the massacre had mental health issues. Therefore, assessing the background and the psychological health of individuals living with a gun owner could be a useful accident prevention measure, even though certain practical difficulties related to this might exist. It will also not cancel the need to keep firearms safe from minors, however.

The Problem of “Gag Laws”

A review of literature also reveals that a number of measures that have a negative impact on the possibility to discuss the use of firearms were taken by state and/or federal authorities. The inability to speak freely on the topic is reported to have an adverse influence on the public health. For instance, Weinberger et al. (2015) point out that certain federal and state mandates pose a barrier to the free speech of doctors; some of such laws, for instance, prohibit medics to discuss the issue of possessing a weapon with their clients. It is highlighted that such restrictions do not let physicians provide their clients with “information about firearms relevant to their health,… fully answer their… questions, and advise them on the course of behaviors that promote health and safety without fear of liability” (Weinberger et al., 2015, p. 514).

In addition, certain steps aimed at restricting the research of weapon safety measures have been taken since the late 1990s by some pro-firearms members of the Congress (Kellermann & Rivara, 2013). For instance, in 1996, the National Center for Injury Prevention and Control, which is a part of the Centers for Disease Control and Prevention (CDC), suffered from aggressive efforts of these congresspersons, which resulted in the loss of $2.6 million from the budget of CDC; it is noteworthy that this is exactly the sum that had been spent to study gun injury in 1995 (Kellermann & Rivara, 2013). It was made clear that the government does not appreciate research on injury prevention; CDC was informed that “none of the funds made available for injury prevention and control… may be used to advocate or promote gun control” (Kellermann & Rivara, 2013, p. 549).

Of course, after such an attack, no members of these institutions dare to conduct studies related to firearms and risk their careers and their institutions’ funding. Furthermore, similar steps aimed at reduction of gun-related injury research were taken towards other agencies later. For example, in 2009, funds for a research of effects of carrying a weapon on the risk of gun assault were provided by the National Institute on Alcohol Abuse and Alcoholism (NIAAA); however, in 2011, the restrictions previously imposed on CDC by the U.S. Congress were expanded on all of the agencies of the Department of Health and Human Services, as well as on the National Institutes of Health (Kellermann & Rivara, 2013). Needless to say, the dearth of research on the topic does little to prevent gun-related injury and deaths.

Findings

The literature review that was provided above allows for four main avenues of introducing gun control without violating the Second Amendment to the U.S. Constitution, namely, a) background and mental health checks, b) limiting the types of weapons that can be kept by civilians, c) introducing requirements pertaining to keeping firearms, c) addressing the “gag laws,” and d) working with civilians who wish to own a weapon or already have one.

Background checks should be made obligatory in all situations in which firearms are sold and bought. These are crucial for ensuring that persons who have a criminal background are not capable of purchasing guns easily and utilizing them in order to satisfy their criminal intentions. Needless to say, however, that owners of firearms need to register their weapons with local authorities. On the other hand, mental health checks are paramount for ensuring that individuals with mental health problems or mental instability do not have (easy) access to firearms, for such persons, if armed with guns, may pose a danger to others, as well as to themselves. In fact, it is noted that suicide is even more common among these people than homicide (Weinberger et al., 2015). It is clear that mental health checks should be performed on a regular basis rather than only once. Restricting the use of firearms by the named groups of people is recognized as not contradicting the Second Amendment (Kellermann & Rivara, 2013).

Limiting the types of weapons which can be kept and carried by civilians is another possibility. In particular, because it was ruled out by the Supreme Court that personal weapons can be kept for lawful purposes such as self-protection irrespectively of one’s participation in the militia, the use of weapons which are designed for more than simply self-defense can be restricted; such weapons may be regarded as not covered by the Second Amendment (Blocher & Miller, 2016). In particular, one does not need to possess assault weapons or guns with large magazines for the purpose of self-protection, and limiting access to such weapons may result in decreased number of injury and death due to mass shootings (Weinberger et al., 2015).

Requirements pertaining to keeping firearms may be introduced in order to restrict access of persons other than a gun owner to the firearms of that owner (Fischman, 2012). It is not necessary for a potential self-killer or a minor to own a gun if they can easily take one owned by a member of their family. Limiting such access may decrease the number of adverse consequences of gun ownership, although introducing such restrictions may prove difficult in practice. Further studies may be required to create such restrictions that would also be effective and practically implementable.

The “gag laws” and decisions of local and national authorities which interfere with free speech on the topic of firearms ownership should be canceled. Physicians can consult their patients on the topic of risks related to gun use, and may often be able to help them with their potential mental issues and the resulting dangers of firearm possession, but they need to have a right to do so (Weinberger et al., 2015). This is not direct gun control, but it may prove effective; in addition, it does not contradict the Second Amendment because no infringements are introduced. Furthermore, research aimed at discovering the causes of the high rates of gun wounds and resulting lethal cases, and at finding the ways to lower these rates, should be stimulated rather than discouraged (Kellermann & Rivara, 2013).

Finally, apart from gun control measures, it is possible to introduce interventions aimed at providing civilians with consultancy related to firearms ownership and use. Weinberger et al. (2015) make it clear that such consultancy is often required; it may be especially needed for those populations who suffer most from gun violence, namely, men aged 25-34 and 35-64 (see Appendix 2) (Grinshteyn & Hemenway, 2016). However, further research is required in order to ensure that such interventions are designed properly and are able to achieve the intended goals.

Conclusion

Therefore, while the right to bear arms is guaranteed by the Second Amendment to the U.S. Constitution, it may be one of the possible causes of the extremely high gun-associated death rates in the USA. Thus, a number of possible steps which introduce stricter gun control, such as an obligatory background and mental health checks, limiting the kinds of firearms available to civilians, and additional requirements for firearms possession, have been offered; in addition, it was proposed to deal with the “physician gag laws” and to work with persons owning a gun. The offered measures are consistent with the Second Amendment, and could be implemented in practice.

Further research may be needed to create particular procedures of controlling the way in which firearms are kept, as well as to design interventions aimed at decreasing the levels of gun violence in the population.

References

Bearing arms: Second amendment. (n.d.). Web.

Blocher, J., & Miller, D. A. H. (2016). What is gun control? Direct burdens, incidental burdens, and the boundaries of the Second Amendment. The University of Chicago Law Review, 83(1), 295-355.

District of Columbia v. Heller, 554 U.S. 570 (2008).

Fischman, H. (2012). Introductory remarks to the Fordham Urban Law Journal’s volume xxxix symposium: Gun control and the Second Amendment: Developments and controversies in the wake of District of Columbia v. Heller and McDonald v. Chicago. Fordham Urban Law Journal, 39(5), 1339-1352.

Grinshteyn, E., & Hemenway, D. (2016). Violent death rates: The US compared with other high-income OECD countries, 2010. The American Journal of Medicine, 129(3), 266-273. Web.

Kellermann, A. L., & Rivara, F. P. (2013). Silencing the science on gun research. JAMA: The Journal of the American Medical Association, 309(6), 549-550. Web.

Rosenthal, L. (2015). The limits of Second Amendment originalism and the constitutional case for gun control. Washington University Law Review, 92(5), 1187-1259. Web.

United States v. Cruikshank, 92 U.S. 542 (1875).

Weinberger, S. E., Hoyt, D. B., Lawrence, H. C., Levin, S., Henley, D. E., Alden, E. R.,…Hubbard, W. C. (2015). Firearm-related injury and death in the United States: A call to action from 8 health professional organizations and the American Bar Association. Annals of Internal Medicine, 162(7), 513-516. Web.

Appendix 1

The comparison of total death rates for each 100,000 of the population in high-income countries, 2010
The comparison of total death rates for each 100,000 of the population in high-income countries, 2010 (Grinshteyn & Hemenway, 2016, p. 271).

Appendix 2

Death rates for each 100,000 of the population in the U.S. in 2010.
Death rates for each 100,000 of the population in the U.S. in 2010 (Grinshteyn & Hemenway, 2016, p. 268).
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