The fatal shooting in Parkland, Florida on Valentines day has left us with another critical issue of American society, politics, violence, and gun control legislation. Political anger has fingers pointing to who is at fault. American citizens are bantering vehemently for better gun legislation and gun control. Even the federal and local law enforcement are on the hot seat for dereliction of duty by failing to prevent this tragedy from happening.
Inevitably, the calling for stricter weapon bans permeate the American Political arena. The debate on the intent, purpose, and motivation of the Second Amendment is called into question, defended, and slandered.
It is devastating to wake up to read such violence in our society. We are frustrated, angry, bitter, and left wondering on how we move forward with better laws that help maintain a free society and prevent another tragedy like this from happening.
A Current State of Affairs
Patty Murray is a strong proponent of more gun regulations and gun control. On February 15, she made this statement on her Facebook page:
As a mother and a grandmother, I can’t imagine the shock and pain families in Florida are going through right now. My heart breaks whenever I see images of kids running out of schools with their hands on their heads, but in this country, those images are shockingly common. NRA-funded Republicans have to stop pretending this is normal or that this epidemic cannot be addressed. WE do not have to live this way. Families across the country are looking to Congress to step up, have the tough conversations, and adopt common-sense policies like comprehensive background checks and bans on high-capacity magazines, assault rifles, and bump stocks that are used to create machine guns. Inaction is not an option. Are you with me?
On February 16, at 9:33 am, Murray published this statement, this time linking to an article published by the Washington Post:
I don’t say this often, but I wholeheartedly agree with Secretary Devos.
Families across the country are tired of waiting for Congress to step up, have the tough conversations, and adopt common sense gun safety and other policies to end this scourge in our schools and communities … Congress must hold hearings on gun violence in our schools so we can finally take real legislative action on this issue.
Linking to another Washington Post article, this time regarding President Donald J. Trump and proposed budget for 2018, Murray published this statement at 3:04 pm:
Yesterday President Trump claimed he wants to improve mental health care and school safety, but his proposed 2018 budget indicates the exact opposite. If the president was serious about stopping the scourge of gun violence, he would work with Congress on common-sense gun safety measures, rather than pointing to mental health services and school safety issues as the only solutions just days after introducing a budget that slashes those very investments I stand with our students, teachers, and parents in demanding actionable solutions including common-sense gun safety laws right now because too many lives have already been lost due to Republican inaction.
Today, about 1:00 pm, Murray made this additional post on her Facebook page:
To the students, families, and all those impacted by the tragic act of violence in Parkland, Florida: I will do everything I can to fight for common-sense gun safety reforms that will help prevent this from ever happening again. No child should ever have to fear going to school, and I’m urging my Republican colleagues to join Democrats in calling for real, meaningful action. Enough is enough.
On some level, what Patty Murray is relating, makes sense. In light of the tragedy in Parkland, Florida, there does need to be a healthy, proactive, and common-sense approach in addressing the recent rise in school shootings we have experienced. The question is: where do we start, and how do we go about developing an appropriate way to address such gun violence issues?
The answer, based on the prevalent social media conversations, seem to focus on more comprehensive gun restrictions, legislature, and public policy laws that will deter and prevent another tragedy like this from happening. The premise being, the Government is required to develop, implement, and support such regulations, gun control, and gun restrictions onto the American citizens for their protection of life, liberty, and the pursuit of happiness.
This brings into the debate of what the heart and core protection of American liberties and rights, afforded under the Constitution, are when it concerns the Second Amendment. It also brings into the arena of discussion, the very heart and soul of the Government’s jurisprudence in affording adequate protection to each individual citizen from any violent crime they may encounter.
To do so, we begin with understanding whether or not the Federal, state, and local, Government’s have a duty to protect each individual from potential, and fatal, violence perpetrated by another person.
Government’s Role regarding Gun Violence, Gun Control Legislation, and the Second Amendment
Todd Barnet published an article in the Missouri Law Review – titled: Gun Control Laws Violate the Second Amendment and May Lead to Higher Crime Rates. Barnet makes the initial observation:
The recent flurry in regulatory activity regarding possession of firearms, at the federal, state, and local levels, warrants close examination of the permissible scope of firearms regulation in the United States. Much of this gun control activity is driven by politics and emotions, and is not necessarily based on scientific evaluation of the utility of gun ownership in this country. Therefore, the recent empirical data regarding actual gun use patterns, which corroborate the view that gun ownership should be encouraged as a policy matter may result in a rational policy-based approach to gun regulation, compared to the existing patchwork of Second Amendment case law.
Barnet continues his observation:
From a legal standpoint, the analysis of the United States Constitution and the existing federal and state case law lends support to the view that the right to bear arms is fundamental right guaranteed to individual citizens.
The latter will become evident later in this essay. Suffice it to say, Barnet’s premise appears sound in relation to the ongoing conversation of regulation, public policy, and how we move forward with gun regulation.
Let’s consider a couple of points of observation. First, Barnet remarks how legislation and public policy ought to forgo political driven populist agenda and opinion (as evidenced by Patty Murray’s published comments) and emotional responses that are evoked after a violent tragedy where guns were utilized in the fatal encounters.
This does not negate the reality of our emotions generated; and, the political conversations needed because of such tragedies having occurred. It presents the conversation we ought to have within a more rational and logical arena of appropriate conversations. That conversation begins with the government’s responsibility to protect American citizens from such violence.
The second principle we want to bare in mind, when it comes to the conversation of gun regulation and gun control policy making, we do well to focus more on the empirical data and evidence in order to rightly encourage, develop, and implement appropriate policies and laws that also lend support to the integrity of the fundamental right guaranteed by the Second Amendment.
Barnet observes how,
Modern legal theory does not appear to recognize any duty owed by the government to protect particular individuals from harms inflicted by other private citizens, although the government is obligated to protect the population as a whole.
On the one hand, the Government, federal, state, and local levels, have the obligation to protect the whole of American citizens from any potential threat or harm. However, when it comes to the individual right and protection of life, liberty, and pursuit of happiness (as afforded by the 14th Amendment of the Bill of Rights); the Government has no obligation.
This appears an important point of observation as we read how the FBI and other law enforcement entities may have been apprised of the potential threat, and the apparent dereliction in their duty to prevent the tragedy of Parkland from occurring.
In the New York Times article, we read this:
Rick Scott, the Republican governor of Florida, said the bureau’s failure to act on the tip was “unacceptable” and called for the bureau’s director, Christopher A. Wray, to resign. “Seventeen innocent people are dead and acknowledging a mistake isn’t going to cut it.” Mr. Scott said in a statement. Senator Marco Rubio, Republican of Florida, also asked for Congress to investigate.
Had the FBI followed through on the tips, would they still have had the opportunity to intervene and prevent this from happening? We may never know the answer to this question. Despite, whether or not the FBI failed to follow through, we fail to recognize and acknowledge that our law enforcement agencies are more responsive to incidents, including those of a violent behavior, than they are proactive and preventative. This is the argument Barnet makes in his article.
Barnet remarks on this issue:
There appears to be a continual lack of clarity regarding the right of an individual citizen to bear arms for self-protection, such as governmental immunity from claims by victims of violent crimes makes a citizen defenseless against violence. At the same time, the individual is uncertain whether or arming [themselves] will make [them] a “criminal” in the eyes of the legal system.
It comes down to the question of whether or not each individual citizen in America has the right to bear arms for the sole purpose of self-defense against potential victimization of violent crimes; or, that right belongs to the Government to protect each citizen.
Barnet illustrates his point by reflection of a case in 1990 that involved a father and a minor child. The case is DeShaney v Winnebago County Department of Social Services and involved the abuse of a minor child. According to Barnet, the State social services had ample evidence, yet, there seemed to be no action taken. Despite any governmental interventions, the minor suffered extreme abuse at the hands of their father whereby the child was rendered disabled. A lawsuit was brought forth against the state authorities for failure to protect against harm.
Federal and State courts upheld the view that the government owes no duty to provide police protection to residents within its jurisdiction. The affirmative duty on the government would expose it to a whirlwind of claims by the victims of crimes.
This “fundamental principle of American law” warrants critical re-examination in light of the increasing attempts to limit citizen’s access to firearms for self-protection. The haphazard legislative and judicial activity aimed at restricting the types of arms available to the populace underlines the conclusion that the pervasive influence of the DeShaney principle in the contemporary American jurisprudence warrants wider, rather than more restricted, availability of firearms for personal protection, it should not be shielded from liability to crime victims who, having no alternative means of defending their families and themselves against violence, are compelled to rely on the government for such protection.
Two simple truths stem from this observation:
First, if we place the right and authority for federal, state, and local government to enforce and provide necessary protection against potential violent harm; then these governmental agencies and politicians become liable for potential lawsuits in their failure to secure adequate and reasonable protection against such harm.
Second, if the government does not have an obligation to provide reasonable and adequate protection to every citizen where they are not victims of violent crime; then, the governmental agencies and politicians have a reasonable right to sustain and enhance the citizen’s right to bare arms for self-defense and preservation afforded under the Second Amendment of the Constitution from victimization of violent crimes.
Barnet synthesizes this observation, as it relates to the DeShaney case:
In the case of gun control laws, however, the individual victim cannot avoid the encounter with the perpetrator because the crime and violence are widespread. The change of residence, for example, would only reduce the probability of becoming a victim of a crime, without completely eliminating such danger. Because each encounter with violent criminal is potentially fatal, reliance on the good will and omnipotence of the government in preventing crime is unwarranted. An individual should be able to defend himself if the need arises, lest waiting for the government to protect result in incurable harm.
Barnet further observes:
The current gun control laws in many jurisdictions (particularly in large cities where the probability of being victimized is the highest and the firearm controls are the toughest) effectively put citizens at the mercy of criminals while the state asserts its immunity from responsibility for protection of the public.
Therefore, the call for more common-sense gun control legislation, restrictions, and weapon bans are more futile responses to address the growing gun violence. We do well to understand that it is not our Government’s provisional authority to protect us from violent crime, it is us as responsible citizens of the United States to support, sustain, and retain our fundamental Second Amendment right to keep and bear arms.
The Second Amendment and our Fundamental Rights and Liberties
As pointed out, whenever a tragedy (like Parkland, Florida) occurs, the conversation moves toward the debate on the Second Amendment; Especially when there are renewed calls to action in developing more and more laws to restrict, ban, and legislate ownership of firearms.
Historical precedence and the Second Amendment
We begin by understanding the original intent of the Second Amendment and the historical context of which it was developed, ratified, and codified in our Bill of Rights.
David E. Vandercoy published an article in 1994: The History of the Second Amendment. The premise of his article focused on the historicity of the Second Amendment and the development of how it came to be codified.
…the original intent of the Second Amendment was to protect each individual’s right to keep and bear arms, and to guarantee that individuals acting collectively could throw off the yokes of any oppressive government which may arise. Thus, the right envisioned was not only the right to be armed, but to be armed at the level equal to the government.
Vandercoy’s article is relevant because there appears to be some inherent fear that more and more Government regulations and restrictions (under the “gun control” premise) may inevitably lead toward total disarmament of the populace. This is not based on some perceived threat or conspiracy theory proponents. It’s significantly based on historical precedence we have seen happen in human history.
The process toward the codification of the Second Amendment came from the understanding of a relationship between the people and the concept of a standing army. In England, prior to Charles I, the right of the people to bear arms revolved around the ability to be called to participate in times of war. When there were times of peace, each individual had the right to not only bear arms, the individuals were also obligated to “train up” their household in the ability to learn how to use weapons for individual protection, and, social protections.
Vandercoy relates that when Charles I took the throne:
[He] began developing his own army, Charles attempted to raise funds for additional military forces by writs or assessments on each individual. In addition, ecclesiastical canons were added which advised subjects that bearing arms against the King would result in damnation.
Along with this, Vandercoy observes: Charles [II] attempted to disarm many militia units by confiscating public magazines and seizing the weapons of the residents. He further observes this attempt included a move toward total disarmament. This move appeared to be made with the passage of the Game Act of 1671.
The early British colonies were subjugated to the prevailing laws of the King. This included a standing army, forcible housing of English Soldiers, and the inability to own or possess any firearms.
Despite the prohibition of the firearms, Vandercoy reflects:
The English republican views on the relationship between arms and democracy profoundly influenced the views of the founding fathers. Both, the Federalists, those promoting strong central government, and the Antifederalists, those believing that liberties including the right of self-rule would be protected best by preservation of local autonomy, agreed that arms and liberty were inextricably linked.
This raised the debate of the governmental rights and roles when it came to providing an established military, while keeping the integrity and right of individual self-protection and preservation. This focused on having an army supported by the Government, yet, establishing check and balances against an imposed standing army.
Vandercoy provides a summation of George Mason’s belief in how history has proven the most effective way to enslave people is to disarm them. According to Mason’s view, each citizen had an alienable right provided by divine providence to self-defense, to include one’s political liberty.
Vandercoy quotes Noah Webster’s argument from An Examination of the Leading Principles of the Federal Constitution, 1787:
Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom of Europe. the Supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and the constitute force superior to any bands of regular troops than can be, on any pretense, raised in the United States.
Vandercoy also shares Alexander Hamilton’s views where the suggestion rests on how those representing the American populace, by elective and democratic voting process, come to betray their constituents, the people retain the very right to defend their political rights and possess the necessary means to do so.
This reflects the main intent of the Second Amendment. First, we secure the right to have an armed and maintained militia. The second, to maintain individual rights to keep and bear arms so that the republic maintains respective check and balances regarding risks associated with the government becoming too powerful and tyrannical.
What about the individual right to protect and preserve one’s right to life, liberty, and the pursuit of happiness?
Second Amendment guarantees right to self-preservation and protection
Jonathan Meltzer published his article in the Yale Law Journal in March of 2014: Open Carry for All: Heller and Our Nineteenth-Century Second Amendment.
Meltzer begins by establishing this observation:
An individual right to keep and bear arms might be guaranteed for any number of reasons, and the Court determined that the Second Amendment grants “the individual right to possess and carry weapons in case of confrontation.” It came to this conclusion upon finding “[t]his meaning…strongly confirmed the historical background of the Second Amendment.” The Court stated that although the prefatory clause indicated that preserving the militia was key to the right’s codification, self-defense “was the central component of the right itself.”
Meltzer’s article is reflective of the premise of how we come to understand the nature and heart of the Second Amendment. This comes from the perception of the Supreme Court and case law. And, concerns the right to bear arms outside of the home.
We see this established here:
The Court’s language indicating that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation” would seem to require some right to carry outside of the home. Without any right to carry outside the home at all, many (indeed, perhaps most) confrontations would occur outside the protection of the Amendment. Consequently, many commentators have argued that the only way to read Heller is as a guarantee of some right to carry a weapon anywhere a confrontation may occur. Furthermore, at least one court has argued that the Supreme Court’s reference to “self-defense and hunting” as purposes for bearing arm in Heller suggests that the right to carry firearms outside the home in order to hunt game is guaranteed.
Here, we come to understand that American citizens are not immune from potential victimization of violence; especially violent crimes when it comes to the use of firearms and other weapons. Since we are not immune from violent crimes, we are provided a fundamental guarantee to protect ourselves to ward off any potential harm we may be confronted with.
In their article (published in the American Journal of Public Health), Changing the Constitutional Landscape for Firearms: The US Supreme Court’s Recent Second Amendment Decisions, Rutkow, Teret, Vernick, and Webster analyze two Supreme Court case laws. The first focused on the previously mentioned Heller case. The second concerned McDonald v City of Chicago. The analysis focused more on the critical questions that both cases left unanswered.
In the Heller v District of Columbia a ban on owning handguns was a prevailing law in the District of Columbia. The Supreme court upheld a previous case law regarding Miller:
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.
When the Supreme Court decided to hear the case of District of Columbia v Heller (as the District of Columbia was found to be in violation of the Second Amendment with their restriction of owning a handgun and denying Heller the right to own a handgun for home defense and protection), a decision was made to uphold the intent of the Second Amendment:
When the Supreme Court agreed to hear the Heller case, this represented the first tie since Miller in 1939 that the Supreme Court had even considered a case directly addressing the Second Amendment. As a result, stakeholders on both sides of the issue mobilized in an effort to influence the court. More than 30 friend-of-the-court (amicus curiae) briefs were filed with the Supreme Court by groups as diverse as the American Public Health Association, the National Rifle Association (NRA), and the NAACP. These amicus briefs offered legal arguments as well as public health and criminological research about the pros and cons of gun ownership and regulation.
The researchers also commented on Justice Scalia’s interpretation of the Second Amendment regarded the District of Columbia’s unconstitutionally ban on handgun ownership. The only reservation Justice Scalia held focused more on the reality that the Second Amendment, and all other amendments of the Constitution, does not imply unlimited provisions and liberties:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms.
This brings us right back to the reality of modern gun violence in American Society. How this relates to appropriate, and common-sense, regulations and the Second Amendment.
Summary of thought and opinion
No doubt, the Parkland, Florida shooting on Valentines day is another tragic moment in history. It is unfortunate and our hearts and thoughts are with the families and those who are victims of such a senseless act of violence.
However, the reality is, further gun regulations, control, and restrictions will not do anything to prevent another tragedy like that in Parkland, Florida. If that were the case, we would have established such policies and procedures that prevented any other school shooting tragedy when Columbine had occurred.
Instead of demanding more and more gun control and restrictions, we do well to remember that these do more harm than good to the citizens of America. Not only does it place each one of us in a position of defenselessness from such violent acts; it places the responsibility of the American Government (Federal, State, and Local) responsible and liable for any harm ensued when such violent criminal acts are committed.
The Second Amendment is not an unlimited license and carry permit. However, it is also for the protection of each of us in case we need to raise a defense from foreign and domestic enemies, as well as afford each individual the right to self-defense, protection, and preservation that is codified in the 14th Amendment.
Any further restrictions, conversations of weapons ban, and gun control legislation is anathema to the Constitution and denies the individual right. This is where we need to establish common sense regulations.
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