Understanding Gun Rights and Laws in Light of the Las Vegas Tragedy, Part One: The Second Amendment

The last week has seen an incredible tragedy in Las Vegas. It’s hard to imagine there are many who have not already heard of the incident. However, for those who have not, on October first a gunman opened fire on a music festival in Las Vegas-shooting concert goers from his room on the 32nd floor of the Mandalay Bay Casino and Resort. As of now, reports place the mass shooting as the deadliest in U.S. history with 58 people killed and 489 injured.

The shooter, Steven Paddock, took his own life after the shooting. Mr. Paddock was a 64-year-old white man. A successful accountant who, according to his family and girlfriend, showed no prior signs of a desire to commit violence before this shooting. Law enforcement has been unable to determine a motive for the heinous acts. However, authorities have reported that they suspect he had undiagnosed mental illness-citing standoffishness in his relationships with others and long days of gambling without human contact. Police also found extensive notes in Mr. Paddock’s apartment, mostly of mathematic calculations regarding distance and trajectory of shots from his hotel into the unsuspecting crowd. However, none of these notes have helped determine Mr. Paddock’s motive.

While learning a motive may help unravel the series of events here. It will ultimately do nothing for Paddock’s many victims. People as young as 20 and as old as 67–teachers, fishermen, nurses, and more–all struck down on a whim by somebody with a high-powered arsenal of guns. Paddock had over 20 guns with him in his hotel room. These guns were mostly rifles and were often modified so as to have fully-automatic firing capabilities. He also had over 50 pounds of explosives and over 1.5 thousand rounds of ammunition. With no limit on the number of firearms which can be owned, all these guns-if not the modifications made to them-were perfectly legal. With no issues in his background, there was nothing to stop Mr. Paddock from purchasing the tools he used for his killing spree at shops all around California and Nevada.

second amendmentNot surprisingly, this horrible tragedy has sparked renewed conversation about how we handle firearms in the U.S. It is an undeniable fact that there are more mass shootings in the U.S. than anywhere else in the world. We’re 31st in gun violence of all countries but far and away first in gun violence among the most developed countries in the world. This is at least partly due to the fact that we simply have more citizen-owned guns per person than anywhere else-we’re less than 5% of the world’s population but have about 50% of the world’s citizen owned guns.

Many have spoken out about Mr. Paddock’s ability to legally gather such an armory and put it to such awful use. The cries for strengthened gun control have been louder than ever-for limits on the types, numbers, and modifications that can be made to personally owned weapons along with more in-depth reporting requirements. On the other side, gun rights advocates say that such limitations would violate their Second Amendment rights.

There are valid questions of what sort of gun laws are constitutional, as well what sort of gun laws could responsibly have prevented this sort of situation. Many states have different approaches to how guns are handled, from reporting requirements to limiting types of guns such as fully automatic rifles. In order to understand how such laws can be applied, we need to understand the purpose and rights granted by the Second Amendment of the Constitution as well as how gun control laws are handled at a constitutional and state by state level. These are both enormous topics to undertake, so we’re going to have to split them into two separate articles that broadly cover how these topics work. We’ll start by looking at the right to bear arms itself.

The History and Protections of the Second Amendment

The Second Amendment of the U.S. Constitution says: “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.” This has long been touted as a right for citizens to own guns or other armaments. However, for the vast majority of U.S. history this has not been the case.

In 1876, the Supreme Court ruled that the Second Amendment didn’t even apply to the states but only to the federal government. The year before, in 1875, the Supreme Court dismissed charges against white men who had killed over sixty black people when they were charged with conspiring to prevent black people from exercising their Second Amendment rights. The Supreme Court said there was no case because the Second Amendment restricted Congress, but granted no rights whatsoever to private individuals.

The Supreme Court has not rendered many decisions about the meaning of the Second Amendment. In 1876, the Court ruled that the Second Amendment only applies to limit the federal government. This means that the rights that are granted by the Second Amendment can be limited by state governments.

Laws restricting the use, sale and public carrying of guns (especially concealed carrying) were consistently upheld for over a century. While this was the case, the exact rights granted by the Second Amendment were a topic of debate in the public but quite consistently not granted to individuals in the courts. In 1939, the Miller case further explained the outlines of the Second Amendment. The Supreme Court clarified that the Second Amendment did not guarantee an individual constitutional right to citizens of the U.S. Instead, the Amendment prevents Congress from taking away a states right to self-defense by limiting their ability to maintain a “well-regulated Militia.” Even then, many restrictions on firearms were allowed as irrelevant to the preservation and efficiency of a well regulated militia.

This was the established limits of the Second Amendment for decades to come until quite recently, in 2008, the Supreme Court changed these contours through a case known as Heller. The Heller ruling-as part of rejecting a DC total ban on handgun ownership-reinterpreted the Second Amendment to grant an individual right to possess firearms-even if that possession wasn’t in connection with service to a militia-for lawful purposes such as self-defense within your home. However, the ruling also made it clear that this right was far from an unlimited right to carry any weapon for any purpose. Concealed weapons prohibitions were specifically described as constitutional; longstanding prohibitions on gun ownership such as for particularly dangerous weapons, restrictions on sale, limitations in regard to felons and mentally ill persons, reporting requirements, and limitations on bringing guns to places like schools and government buildings were also specifically described as constitutional. More broadly, longstanding restrictions were discussed as unaffected by the Heller decision. The individual right was largely hinged on the right of self-defense especially when in the home.

The Second Amendment and Stopping Gun Violence

The truth is, it is very hard to stop a person from getting guns-after all there’s more guns than people in the U.S. We’ve seen that Mr. Paddock purchased all his guns legally and then illegally modified them to make them even more deadly. Background check and registration requirements didn’t stop a man with no criminal record or mental health history from purchasing an enormous amount of guns with which to commit an atrocity. So what steps can we take within the U.S.’ current constitutional framework?

With the current state of the Second Amendment, gun control laws are harder pressed than ever. However, the truth is that there is quite a bit that can still be constitutionally done. Registration requirements are generally considered part of the constitutional longstanding limitations. A man such as Paddock can purchase legal guns and modify them to be much more deadly than purchased. So how can we stop this sort of thing? More thorough background check requirements-after all we require a license to drive a car-could be extremely useful. Reporting requirements when traveling with firearms, rules on storage, and a serious crackdown or firearm trafficking are all steps which could also have maybe averted this tragedy.

However, in order to understand what legislation could help the U.S.’ gun violence epidemic, it is necessary to fully understand how gun control laws are generally treated both at the federal level and among the states-understanding what the Second Amendment allows is only the first step. Later this week, we’ll take a look at how these laws are treated and think about what steps could be taken towards responsible, effective gun control laws.

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