Chad A. Stonehocker

William J. Greer

Political Science 1100

4 Feb 2012

 

The Second Amendment as interpreted by the Supreme Court.

 

            The Second Amendment of the United 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.” has been considered among the most misunderstood provisions of the U.S. Constitution.  That is not because it is particularly difficult to understand.  On the contrary, for more than a hundred years after it was adopted, hardly anyone seemed the least bit confused about what it meant(1). It has been during the twentieth century as those with influence in the U.S. have sought to disarm the nation that controversy has begun, and those challenges have worked their way through the system to be considered by the Supreme Court.

 

            There have been many approaches over the decades to try to manipulate the interpretation of the amendment to bear arms, most of the cases instead of trying to unilaterally challenge the rights as dictated within the constitution approach the matter obliquely. Proponents of disarmament attempt to limit specific weapons, or groups of the populous and thereby limit the use of firearms to the extent that by the new interpretation they meet their goals.  Throughout the history of the cases involving the rights of the citizens of the United States, over time there has been more pressure to eliminate weapons, or make them less available by imposing restrictions to their being obtained or retained by the public.

 

           

Key Decisions in Second Amendment rights

Year	Case	Focus
2010	McDonald v. Chicago	Self defense is fully applicable
2008	District of Columbia v. Heller	Firearms unconnected with service in a militia
1939	United States v. Miller	Weapon Types

 

 

            Prior to the 2008 District of Columbia v. Heller decision most courts had little disagreement about the meaning of the language within the second amendment. [3]

 

Two primary legal reasons explained this virtual unanimity. The first involves something lawyers call the "incorporation doctrine." When the Constitution was first ratified, most of its provisions specified the extent and limits of federal government authority. Even the familiar protections enumerated in the Bill of Rights -- such as the First Amendment's freedom of speech and religion clauses -- initially affected only the powers of the federal government, not the state governments.[ 4] In 1868, however, the 14th Amendment was ratified, explicitly forbidding states to "deprive any person of life, liberty, or property, without due process of law."[ 5] As a result, the Supreme Court began to decide that most of the Bill of Rights guarantees were included in -- or "incorporated" into -- the more general language of the 14th Amendment as a limit on state (not just federal) powers. But the court has never accepted the argument that the entire Bill of Rights was incorporated en masse, preferring a case-by-case (right-by-right) approach.[ 6] Until the McDonald decision, the Second Amendment remained one of the very few parts of the Bill of Rights not so "incorporated." In fact, in a pair of 19th-century cases -- United States v Cruikshank (1876)[ 7] and Presser v Illinois (1886)[ 8] -- the court found that the Second Amendment limited only the federal government. Numerous state laws affecting gun ownership have been upheld on this basis[9][10].

            The second reason why most courts, before Heller and McDonald, had little trouble upholding gun laws involves the language of the Second Amendment itself, specifically the "militia" clause preceding the "right to keep and bear arms." In 1939, the Supreme Court decided United States v Miller, a case in which 2 individuals challenged their criminal indictment under a federal law restricting sawed-off shotguns.[ 11] Because Miller involved a federal law, the earlier Cruikshank and Presser decisions were not directly applicable. In Miller, the court upheld the indictments, ruling that the Second Amendment did not protect the right to keep and bear a firearm that did not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"[ 12] (see also Lewis v United States[ 13]). Miller was a relatively brief opinion without substantial discussion of the basis for its ruling. Nevertheless, lower courts routinely upheld federal and state firearm laws citing Miller.[ 14][ 15]

 

            These recent cases illustrate that although individual states may impose restrictions on firearms, that ultimately if and when the case comes before the Supreme Court; it will be upheld that the individual retains the right to bear arms.

 

 One of the most compelling reasons for change has been the advancement of weapon technology; it is argued, and arguable that when the framework for the constitution was enacted the concept of a weapon that could kill one or a few in rapid succession was not inconceivable, but unrealistic.  With the weaponry of today it is conceivable and practical to believe that one citizen can use weaponry that can inflict great harm and takes perhaps less skill than would have been expected when the amendment was framed.

 

            Throughout the history of the Supreme Court as it has made decisions brought before it for the Second Amendment there was a general consensus that the language stood for a common understanding and little to no interpretation has been needed.  As there have been more sensational cases of abuse and misuse by the citizenry in the application of firearms, public opinion has become more focused on keeping weapons out of the hands of those on the extreme end of improper usage.  The issue arises in determining how best to keep weapons out of the hands of extremists, but to uphold the liberty of the citizens that the protection of the constitution should encompass.  Ultimately the rights spelled out in the constitution protect all equally, only with specific conditions as to whom the rights should be reasonably extended to can the government (both national, and state) protect the many by denying the few that would not use weaponry as intended (as interpreted for the common good by laws as defined at the state and national level.)[16]

 

 

While the meaning of the Amendment was well understood for a significant period of time after its adoption, at some point those who would attempt to interpret, or misinterpret it, towards their perspective end, blurred the meaning. This resulted in decades of debate, from the first time the Supreme Court interpreted in the Amendment in 1876, to the present day. Throughout this time the Amendment was dissected, analyzed, and interpreted by legal scholars and advocates on both sides of the gun debate to significantly different results. Gun rights advocates interpret the phrase, consistent with the common law and the historical understanding of the right, to provide individuals with protections against government intrusion into their right to keep and use firearms for lawful purposes. Those same words, on the other hand, are analyzed as creating a collective right in which only the states, in connection with the militia, can assert. The latter position taken by gun control advocates’ advances their agenda 48 District of Columbia v. Heller, 128 S. Ct. 2783 (2008). 49 KOPEL, supra note 32, at 147 (the first Second Amendment related issue that reached the Supreme Court occurred in 1820, 30 years after the Amendment was passed and it would be another 36 years until the issue would arise again.). 2009-2010] HELLER, NORDYKE, AND BEYOND 97 because it creates an environment in which the states can limit or ban gun ownership without regard for the Second Amendment. To a large extent, the central focus in the debate has been to who holds, and thus who may assert the right. While there are many perspectives in the debate,50 the two that are at issue in the Ninth Circuit, and which are the focus here, are the collective rights and the individual rights models. A third type, referred to as the qualified collective right or sophisticated collective right model, will be discussed below in connection with the dissent in Heller. The collective rights model suggests that the right belongs only to the militia, and since the states are responsible for regulating their militias, only the states have standing to bring a Second Amendment claim.51 According to this view, the goal of the Second Amendment is merely to guarantee the right of the states to maintain their militias, not t guarantee any right to individuals; and Congress has adequately protected the right of the states with the National Guard System.52 Reaching a conclusion that justifies the collective rights model defies logic. For one, it is unreasonable to conclude that when the Second Amendment refers to “the people” that this does not confer an individual right, as it has been interpreted in every other Amendment.53 Second, suggesting the above Supreme Court holdings create a state right confuses the standing issue as it has been interpreted by the previous Courts.

 

            In conclusion, there are many reasons both for control of firearms, and for the need of a reasonable population to maintain weaponry sufficient to protect themselves, their family, community, and state.  It is the concern of all citizens to protect themselves from not only those whom would do them harm, to protect themselves, but to come to the common defense in a situation where it would be deemed necessary as laid out within the framework of the constitution for militia mobilization.  If the citizenry cannot arm themselves, it is reasonable to assume that an unarmed militia could not be formed, thus taking weaponry away from the citizen would take it away from any militia; this in turn would require another amendment to the constitution to invalidate the second amendment.

 

Works Cited

1. Lund, Nelson “A Primer on the Constitutional Right to Keep and Bear Arms” The Virginia Institute for Public Policy, Potomac Falls, Virginia, No. 7, June 2002 (www.virginiainstitute.org)

2. Second Amendment Foundation. “Supreme court cases on second amendment / Right to keep and bear arms” 2003

3. American Journal of Public Health, Nov2011, Vol. 101 Issue 11, p2021-2026, 6p

4. Barron ex rel Tiernan v Mayor of Baltimore, 8 L Ed 672 (1833).

5. US Constitution, 14th Amendment. Available at: http://www.archives.gov/exhibits/charters/constitution%5famendments%5f11-27.html. Accessed June 14, 2011.

6. Nowak JE, Rotunda RD. Constitutional Law. 8th ed. St Paul, MN: West Publishing; 2009

7. United States v Cruikshank, 92 US 542 (1876).

8. Presser v Illinois, 116 US 252 (1886).

9. Fresno Rifle and Pistol Club Inc. v Van de Kamp, 746 F Supp 1415 (ED CA 1990).

10. Quilici v Village of Morton Grove, 695 F2d 261 (7th Cir 1982).

11. United States v Miller, 307 US 174 (1939)

12. United States v Miller, 307 US 174, 178 (1939).

13. Lewis v United States, 445 US 55, 65 (1980).

14. United States v Oakes, 564 F2d 384 (10th Cir 1977).

15. Hickman v Block, 81 F3d 98 (9th Cir 1996).

16. Rose, Phillip, 96 “Lincoln Law Review” Dec 1, 2009

 

Chad A. Stonehocker

Political Science 1100

Bill Greer

Feb 15 2012

Electoral College method of Presidential and Vice President position

 

            I believe that the method of election for our President and Vice president by using the Electoral College method is antiquated and unnecessary at this point in our new democracy.  Due to advances in technology and communication capabilities I can not fathom why the American infrastructure follows a process of picking someone through our common vote to then hope that they in turn vote in a way that we would like, but can’t guarantee is the way we would have voted.  The elected voter can choose any way that they personally feel is appropriate even though it could be contrary to the popular vote that was used to give them the opportunity to choose.

 

The Electoral College, administered by the National Archives and Records Administration (NARA), is not a place. It is a process that began as part of the original design of the U.S. Constitution. The Electoral College was established by the founding fathers as a compromise between election of the president by Congress and election by popular vote. The people of the United States vote for the electors who then vote for the President.¹

 

At the time where the compromise was needed was at a time where each person that was able to vote could not readily be tallied, and verified as accurate.  Perhaps at this time we could have the direct popular vote that would have been so terribly difficult at that time.   This is not a new idea, but one of the possible downfalls of this type of change is built directly into the system that perpetuates its use.  As sited in the frequently asked questions from the government site of archives frequently asked questions for NARA.

 

Why do we still have the Electoral College?

 

The Electoral College process is part of the original design of the U.S. Constitution. It would be necessary to pass a Constitutional amendment to change this system.

 

Note that the 12th Amendment, the expansion of voting rights, and the use of the popular vote in the States as the vehicle for selecting electors has substantially changed the process.

 

Many different proposals to alter the Presidential election process have been offered over the years, such as direct nation-wide election by the People, but none have been passed by Congress and sent to the States for ratification. Under the most common method for amending the Constitution, an amendment must be proposed by a two-thirds majority in both houses of Congress and ratified by three-fourths of the States.²

 

 

I am definitely not alone in my opinion as also seen in the frequently asked questions for the NARA list that reference sources indicate that over the past 200 years, over 700 proposals have been introduced in Congress to reform or eliminate the Electoral College. There have been more proposals for Constitutional amendments on changing the Electoral College than on any other subject.  The American Bar Association has criticized the Electoral College as "archaic" and "ambiguous" and its polling showed 69 percent of lawyers favored abolishing it in 1987. But surveys of political scientists have supported continuation of the Electoral College. Public opinion polls have shown Americans favored abolishing it by majorities of 58 percent in 1967; 81 percent in 1968; and 75 percent in 1981.³

 

            We as Americans are given the most opportunity to voice our opinion and position on any aspect of our governance by being free to get involved and our vote is our powerful tool, as the President has a Veto; we have our vote.  Considering how important each power is, it is understandable that many detractors of the “Popular Vote” methodology that I am proposing may be against it as voter turnout remains low as compared to those that are eligible to vote.

Voter Turnout ⁴

            The topic of Pro’s and Cons for the Electoral College system has been going on for over two hundred years.  There have been critics and proponents of the system for the entire time and some of the major themes that seem to circle back to the front are often heard.

1.     Voter turnout may be depressed - Since each State is entitled to the same number of electoral votes regardless of its voter turnout, there is no incentive in the States to encourage voter participation

2.     The distribution of Electoral votes in the College tends to over-represent people in rural States

3.     The system fails to accurately reflect the national popular will stems primarily from the winner-take-all mechanism whereby the presidential candidate who wins the most popular votes in the State wins all the Electoral votes of that State⁵

 

            I feel that in our society where every eligible vote should count toward what they are voting on, the need of a system to vote for our voter is outmoded and I feel that I lose my voting power by basically giving it away to someone else to choose for me.  Popular and unpopular candidates would have equal footing if each person had the option to choose whom they wanted instead of having to depend on a rigid two party system.  As an example you could take an Independent that only had influence in the Western United states, and was extremely effective and popular in states where there is a high population; and that person encouraged higher than average turnout for voting and actually won the Presidency and some states that had low turnout may never even have heard of them.  This could not happen in our current system where we are not expressly limited to a two party system, but the hurdles for any candidate to run that was not strictly Democrat or Republican has almost no chance to get their name known in all fifty states and to then be of enough influence for those that are elected to elect to choose them for the position of President, or Vice President.

 

            One vote per eligible voter is definitely the way we should be moving, each state does impose limits and restrictions about how they choose their Electoral College representatives.   Committees, groups and individuals devote a great deal of time and effort in the selection processes and procedures; when in actuality we could simplify and streamline the entire process by identifying the people that are eligible to be voted for State by State and at the end of the day let the American with the most votes be our President.  By having a method where each voter has one vote it wouldn’t be games, innuendo, manipulation, or corruption that would get someone the big chair; it wouldn’t be feasible for any candidate to speak of coat tails and rewards for the masses that would vote them in.  Changing the process may even change the whole aspect of the endless campaign where showing the whole population what can be done, and is done in the position of power would get you known and elected without having to influence those that are already politically inclined and energizing those that are simply of civic mind and demeanor.

Works Cited

 

1.     http://www.archives.gov/federal-register/electoral-college/about.html  - Internet Reference - NARA

2.     http://www.archives.gov/federal-register/electoral-college/faq.html#whyelectoralcollege - Internet Reference - NARA

3.     http://www.archives.gov/federal-register/electoral-college/faq.html#reforms - Internet Reference - NARA

4.     http://ck37.com/voter-registration-and-turnout-1996-2008 - Internet Reference gathered from 2010 Census data.

5.     http://uselectionatlas.org/INFORMATION/INFORMATION/electcollege_procon.php - Internet Reference - David Leip 2008