Reporter: sub micro | Washington
November 11, 2002

 

Today, we will talk about guns caused heated controversy in American, and review the origin America people gun. More than 200 years ago, USA founding fathers in the formulation of the Federal Constitution, adding a series of amendments to the protection of civil rights, the provisions of the second amendment, the security of a free state, need to have a well regulated Militia, therefore the right of the people to keep and bear arms shall not be infringed. However, the framers of the constitution had perhaps did not expect, after two hundred years today, for this amendment has caused a great disturbance in the interpretation and application of USA, and the formation of gun rights and gun control two opposing camps. Gun rights advocates point out, the Second Amendment right to carry a gun in personal inviolability of the person, and support for gun control is considered, this amendment refers to the militia as a collective to carry a gun rights. Then, the constitution makers of the early cases in what?

 

* the different interpretation of the second amendment to the constitution of the *

 

USA earliest history, the most influential gun rights organization "the National Rifle Association" legislative consultant Christopher Conte Legislative Action Research Institute (Christopher A. Conte)Points out, the second amendment and other amendments as relates to the rights of individual citizens. He said: "other rights enumerated America legal right and 'bill of rights' and the whole of the constitution, is the people's proprietary, and people are generally considered to be a person of each. The constitution relate only to power on the government (powers) and responsibilities (duties), and never mentioned rights (rights). Therefore, the second amendment says people have a gun rights, and its' bill of rights' and other rights are the same, refers to the rights of the individual."

 

However, America "stop gun violence education fund" executive chairman Josh Horwitz (Josh Horwitz)Do not agree with this view. He pointed out that, in the America, many people only emphasizes the second amendment after the part, also is the people have a gun rights, this is wrong, because the amendment of the former part also points out, a well regulated militia is the security of a free state, the necessary. Therefore, the use of gun rights is the ability and the militia and state against federal and foreign invasion together.

 

Horwitz said: "the second amendment originally does not mean allowing individuals in any place, any occasion with any gun rights, it refers to the federal forces outside the militia to carry a gun rights, in today, it can be extended to the National Guard in a gun rights."

 

Colorado independent institute director Dave Koppel (Dave Kopel)Analysis of the second amendment of the historical background. He said: "in 1776, USA through armed revolution, from British colonial rule and the declaration of independence. After that, the Federal Constitution, and keep some important rights to the public and made special guarantee in the new constitution, which includes a gun rights, most state constitutions also made the same promise. In twentieth Century, some people put a gun rights do not belong to the people, and belongs to the government, some courts have accepted this argument. However, poll, most Americans think, the second amendment refers to individuals holding belt gun rights. 'nine one one' after the incident, more and more Americans think it is very important right."

 

However, Professor of political science at Cortland, New York State University Robert Spitzer (Robert J. Spitzer)Points out, the second amendment system timing, America no professional regular army, so rely mainly on ordinary people's militia composed. In order to eliminate the state of poetic couplet state constitution to military power over to the new federal government fears, constitution, an additional second amendment, in order to ensure that the general public and state to form militia, to suppress the rebellion or to resist foreign aggression.

 

Spitzer pointed out that, according to the Federal Supreme Court ruling, said the second amendment citizens to carry a gun power, only they hold with guns in the government militia in power. He thinks, Americans with guns and the reality of the second amendment irrelevant. Spitzer points out, the actual application of the second amendment in twentieth Century and twenty-first Century basically is symbolic, people talk about the second amendment and related rights, generally refers to the right to own guns. In fact, the true meaning of the second amendment is not people can have guns for personal purpose.

 

Spitzer said: "the Americans can indeed have guns, and there are a lot of people have guns, but this is not because the second amendment gave them the power to do so, but because Americans have a long history with guns. Today, there are still a small group of Americans like guns, used for hunting, shooting and various sports activities, but also some Americans buy a gun to protect their own safety."

 

We see, there are great differences between different people and interest groups, interpretation of the second amendment. In addition, the democratic and Republican parties have taken different positions also to make the relevant dispute intensified. In general, the Republicans maintain gun rights, Democratic support strict gun control. So, how to have the power of judicial review American Federal Supreme Court explained the second amendment?

 

United States v. Miller * *

In America history, involving the Second Amendment's case has been referred to the court, the court faces tough choices in the decision, they must decide, whether the second amendment is to protect the rights of the individual, or the protection of the collective rights? The court should only standard by the framers of the constitution the original intention as a judge of the second amendment, or should adjust the amendment, in order to adapt to changes in the new era? Below, we have a look at two cases American Federal Supreme Court heard, first of all is the United States of America v. Miller (US v. Miller).

 

In April 18, 1938, Jack Miller and Frank in Leiden between the Oklahoma and Arkansas transport unregistered twin 12 caliber gun, the gun was cut short, less than 18 inch barrel. Miller and Leiden are accused of violating the "1934 national firearms act" and prosecuted. The law prohibits without to register with the government and tax situation, with machine guns and a sawed off shotgun. However, Miller and Leiden, the law violates the second amendment. The Federal District Court agreed with their argument, the government will appeal the verdict.

 

In March 30, 1939, the Federal Supreme Court case, the defendant Miller and defense lawyers are not in court. In May 15, 1939, the Federal Supreme Court, federal regulations to the militia is defined as the age of 18 to the able-bodied male citizens between the age of 35, Miller and Leiden are members of a militia. The court said, because the defendant did not present any evidence, sawn off shotguns are used for military purposes, and there is a reasonable and effective to keep a well regulated Militia, therefore hold the gun is not protected by the second amendment to the constitution. The court also ruled that, "the 1934 national firearms act" does not violate the constitution.

 

"USA think-tank Cato Institute analysts Randy Barnett ("Randy E. Barnett)Think, the Federal Supreme Court in the Miller case, of the second amendment of the explanation is not clear. He said, American Federal Supreme Court has never actually answer the second amendment to the constitution is what mean. In the Miller case, it is not clear whether the constitution protection of personal holding belt gun rights. Therefore, in this issue, the Federal Supreme Court did not give people what guidance.

 

However, supporters of gun control, the Federal Supreme Court decision support they proposed to possess guns is the "collective rights" perspective. "Center" America violence policy action director chuck (Matthew anMathew Nosanchuk)Said, the Supreme Court was denied individuals holding belt gun rights. He believes that, in 1939, the Supreme Court basically is to say, the second amendment should be understood as a militia based rights, use of this right is and the militia linked. He pointed out that, the Supreme Court also established "the legitimacy of the 1934 national firearms act". Nor San Chuck said, before this, the Federal Supreme Court also ruled in some case in nineteenth Century, the second amendment does not protect the right of individuals to possess firearms.

 

In this regard, "the legislative action on the National Rifle Association" the legislative consultant Christopher Conte offered opposing views. He says, many people only know that the court's decision, but the case background had insufficient understanding. He said, in this case, to appeal to the Supreme Court, Miller also for armed robbery by other charges. However, he managed to escape in detention. Therefore, the trial was conducted in the absence of his lawyer's presence.

Conte said, Miller decision problem is, no one to represent him in court. The court case, mainly to see the Miller was charged with illegal possession of firearms is suitable for the use of militia activity. Because there is not enough evidence that the guns and military value, so the question is not answered. Conte pointed out that, assuming the gun is suitable for militias use, so Miller will have the right to bear arms. Later, the Federal Supreme Court and put the case back to the lower court, since Miller was on the run, this case in the lower court there is no final decision.

 

* the United States v. Verdu, the Kidd case * Ge

At the same time, advocates of gun rights from the Federal Supreme Court to another is not related to the second amendment case verdict, they need to find a theoretical basis. This case is the United States of America v. Verdu, Wu Ge Kidd case (US v. Verdugo-Urquidez).

 

Mexico citizens and residents of Verdu, Wu Kidd in Ge to a leader USA drug smuggling group. USA drug administration and the Mexico police cooperation to arrest him, and searched his home in Mexico, also seized some of his material. At the trial, Verdu, Ge Wu Kidd is to search in violation of the provisions regarding the fourth amendment to the Constitution by the move, asked the court to prohibit to search out material as the court.

The fourth amendment to the constitution said, people's personal, residential, documents and property against unreasonable search and seizure rights, shall not be infringed. Unless there are reasonable grounds, by oath or generation of vows that searched location and the persons or things to be seized, or shall not issue a warrant or seizure. The district court agreed Verdu Ge, Wu Kidd hereby requests, and points out that the police in warrantless search of his home, in violation of the constitution. In this case, the Federal Supreme Court appeal to the present when the problem is: the fourth amendment is applicable to America law enforcement officials to live abroad for foreign nationals search and seizure?

 

The Federal Supreme Court said, said that the fourth amendment to the constitution of the "people" and other amendments to the "people" is the same, America citizens and legal means in foreign American live. Therefore, to Verdu, Wu Ge Kidd search is not in the Fourth Amendment protection list. Gun rights of people to explain, the decisions of the U.S. Supreme Court is implied, said the second amendment of the "people" and other amendments referred to the "people" have the same meaning. For example, the first amendment says, people's freedom of speech, freedom of association and freedom of peaceful assembly, said is the rights of the individual, so the Second Amendment right to carry a gun also relates to personal rights.

 

* the United States of America v. Emerson case *

On the basis of the Federal Supreme Court precedents, some local courts have also put forward their own interpretation of the second amendment. A recent decision in 2001 in the United States of America v. Emerson (US v. Emerson). At that time, the federal Fifth Circuit Court of Appeals in the judgment is clearly the second amendment interpreted as individuals holding belt gun rights.

In 1998, Texas doctors Emerson and his wife divorce, because of family violence court imposed restrictions. During this period, he threatened to kill his wife's friend. His wife made a report to the authorities, Emerson was found in violation of the "1994 the violence against women act". However, Emerson claimed he was innocent, because no one told him there is the law. The law prohibits the court to implement restrictions have guns. Emerson's appeal against his conviction, he said, violated the second amendment gave him the person to carry a gun rights. A Dezhou Federal District Court agreed with him, and cancel the charges against him. At that time, the Minister of justice Reno under the leadership of the Ministry of justice to America appeals for the Fifth Circuit Court of appeal.

 

The Fifth Circuit Court of Appeals ruled that, given the propensity for violence Emerson always show, Dezhou district court to cancel the charge against him is wrong. However, it pointed out that, although violence Emerson made him people lost the right to own guns, but every law-abiding Americans with gun rights should be protected by the second amendment. The case then appealed to the Supreme Court, however, the Supreme Court dismissed the case, the Fifth Circuit Court of appeals upheld. Emerson's lawyer, (Aaron ClementsAaron C. Clements)That is, the importance of this case, this is the federal court for the first time clearly pointed out, the second amendment guarantee individuals holding belt gun rights, especially those suitable for military use of firearms.

 

However, it needs to be pointed out is that the final verdict, not by the Federal Supreme Court, but by the Fifth Circuit Court of appeals to the judicial jurisdiction, so it's very limited. No matter how different opinions, no matter how the Supreme Court ruling, historical legacy USA constitution as well as many Americans to own guns reality, being used by criminals, they engaged in a variety of gun violence, social order and the safety of people's will constitute a great threat. In the next part of the gun laws, we should talk about American gun control and relevant laws.