Bear Arms Amendment



Bear Arms Amendment

Introduction

Few topics in contemporary American politics generate more passion and vitriol than the debate over guns. An individual's right to own or use firearms, and governmental power to regulate or limit ownership or use of firearms are frequently treated subjects in mass media, and to a lesser extent, the legal academy. The Court's landmark ruling in the Heller case in 2008 provides a helpful lens for examining the legal history, historiography, and jurisprudence surrounding the Second Amendment. The literature manifest in law reviews has tended to make highly partisan arguments contingent on a particular aspect of the historical record. Many of these articles fail to consider the merits of counterarguments, resulting in a highly divisive literature that is largely devoid of constructive tension.

On the other hand, securing the means to a safe and peaceful society is one of the fundamental purposes of our constitutional order. It is inarguably true that guns have been used atrocious ways, and will be so used as long as men possess them. Other groups, such as the National Rifle Association, report on ways in which law-abiding citizens are able to enjoy guns, such as hunting, sporting, and even self-defense against criminal activity. Polemics and lobbying aside, there is substantial debate amongst scholars regarding the relationship between guns and crime, and the efficacy of any given gun policy. The point is these are policy issues, not constitutional issues, and thus are to be pursued in the more political institutions of government. This is the second aspect of the tension: governmental policy and the regulations of firearm ownership and usage. Therefore, all the issues and aspects related to Bear Arms Amendment have been discussed in detail.

Discussion

The certainty that conflict can occur between these two aspects (protection of individual liberty, and governmental policy) of the fundamental debate over the nature of the Second Amendment highlights the role of the courts. For better or worse, courts in the United States are the final arbiter of the relationship between individuals' claims to enforceable rights, and governmental claims to police power. In addition to being tasked with defining the scope of individuals' rights and state powers, the researcher known as Keith Whittington argues that the Framers of the Constitution instituted the judiciary as a way of securing union and preserving the peace. That is, in the midst of its role as arbiter between individual and state, the courts must also act in accordance with their fundamental responsibility to preserve the union as established by the Constitution. Thus, theoretically, courts cannot protect individuals' rights when the protection of that right would threaten the union. Similarly, the court cannot allow a government to exercise a power which would harm the constitutional order (Brigham, 1988).

If the Revolution was to mark the beginning of this new age, then republicanism would be its defining characteristic: representative government by the people, for the people. The people themselves would be rather unique in the annals of time: a virtuous people dedicated ...