NCJ Number
160174
Date Published
1992
Length
7 pages
Annotation
The Second Amendment guarantees individuals the right to own guns; gun controls could be formulated, however, that would decrease the misuse of guns while still protecting this constitutional right.
Abstract
Despite a growing body of literature that has examined the original meaning of the Second Amendment and a debate over the desirability and efficacy of gun-control legislation, no one has attempted to develop an interpretation of the Second Amendment that fits comfortably within the U.S. Supreme Court's modern jurisprudence of individual rights. That jurisprudence can be characterized as an ongoing attempt to reconcile what is known about the original intent underlying the Bill of Rights with the desire of legislatures to respond rationally to modern problems unforeseen at the time it was drafted. Even if it is assumed that the framers of the U.S. Constitution were exclusively concerned with the danger of Federal despotism and the importance of States' maintaining militias, overwhelming textual and historical evidence shows that they chose to guard against that danger by securing the people's private right to arms. The exact scope of the individual right is not expressly defined in the Constitution and is not self-evident. The following questions characterize the discussion: Is the right absolute, so that it extends to all devices that might be characterized as "arms," up to and including nuclear warheads and intercontinental ballistic missiles? Are all citizens, including convicted murderers and lunatics, free to own and carry lethal weapons? If not, what restrictions are constitutionally permissible and on what principles may those restrictions be justified? Restrictions on the private possession and use of handguns are properly aimed at keeping them from those who intend to use them for criminal purposes and from those who are prone to carelessness or fits of temper that result in unplanned injuries to innocent persons. A requirement of firearm insurance similar to the requirement for auto insurance would also be a deterrent to irresponsible firearm use. The private insurance market would quickly and efficiently make it prohibitively expensive for people with a record of irresponsible ownership of guns to possess them legally, but would not impose unreasonable burdens on those who have the self- discipline to exercise their liberty in a responsible fashion.