Reflections On Winkler’s ‘gunfight: The Battle Over The Right To Bear Arms In America’ Essay Sample
Type of paper: Essay
Topic: Amendment, United States, Law, Militia, District, Criminal Justice, Crime, Court
In his book ‘Gunfight: The Battle over the Right to Bear Arms in America,’ Wrinkler tried to present an unbiased view towards the second amendment in the light of historical events and landmark cases that has tried to challenge or obtain the court’s interpretation. One of such cases is the ‘District of Columbia v. Heller’ case, which was argued and decided in 2008. For several instances, the provision in the Second Amendment that pertains to the right of an individual to bear arms has been contested. In fact, the clause, which states that “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”, is perhaps the most misconstrued clause in the American constitution. Adding to the significance of this highly debatable clause is the fact that a flurry of gun related incidences has happened in the United States in the past that has taken many lives including that of children. Among the most significant authors that has attempted to answer the question or at least laid out the possibilities regarding the second amendment is Adam Wrinkler. In light of Winkler’s arguments as well as with other sources, this paper will examine the historical perspective of the second amendment and its connection to the validity of the Supreme Court’s decision on Heller’s case. Also, the paper would like to determine whether the court’s decision is enough to put to rest any future contest of the interpretation of the second amendment.
Adam Winkler and ‘Gunfight: The Battle over the Right to Bear Arms in America’
It is quite evident that the central feature of Winkler’s book is on Dick Heller’s gun control case versus the District of Columbia. However, Winkler does not provide a personal opinion regarding his own interpretation of the second amendment but rather provides a non-partisan view of the highly debated issue in the United States constitution. As a law professor in UCLA, Winkler is one of the most credible authors when it comes to law issues. Perhaps it is also the reason why he was able to present a fairly transparent take on the issue behind the second amendment. With regards to the landmark case of the District of Columbia v. Heller, it is quite evident that the author is unconvinced of the Supreme Court’s decision. Accordingly, there is a “particularly striking inconsistency” in the Heller’s decision, which is rooted on the fact that the Supreme Court’s heavy reliance to the historical meaning of the second amendment, which is cloudy at best. As observed by Winkler, the second amendment has taken different interpretations since its inception in the United States constitution. From having no strict barrier on gun ownership, the nation has also cited the same to control the ownership of the marginalized sector of society such as the blacks and the loyalists that are opposed to the American Revolution. Apparently, the interpretation of the second amendment has not been decisive as to put to rest any argument against its meaning.
Historical Background of the Second Amendment
In evaluating the case of Heller, it is important to know how the Second Amendment came about and what could have influenced the authors of the constitution to pen such clause. It should be noted that the right to bear arms as stipulated in the Second Amendment of the United States constitution has a historic precedent. The law has its English roots, which has been brought by the early settlers to the New World. England, at around 10th century A.D., is under constant threat. For the same reason, the king requires his subjects to be armed in order to be ready for constant threats. Because kings during those days maintain only a small standing army, the practice of arming civilians has somehow become compulsory. As observed, King Henry II required each able bodied men to be armed and prohibited them to sell, isolate or pledge their weapons away from their possession. In times of war, these armed civilians are expected to be utilized when the need arises. The Tudor dynasty has kept the same set up of having only a small army and relying on nobles and civilians during times of conflicts. During the reign of Elizabeth I, armed and able-bodied citizens are occasionally summoned to maintain peace and order and it was also during the time when the term ‘militia’ emerged in reference to the civilians that carry arms. Evidently, there is no distinction between a civilian and a militia when the term first emerged. For the early Englishmen, as long as you are an able bodied civilian with an arm, you are automatically regarded as a militia. Such were the common understanding of the word militia when it was brought by the early settlers in to the New World.
Confusion Regarding the Meaning of Militia
Without a constant threat scenario of England, a new political setting is slowly emerging in the United States. However, firearms have already become a part of the individual that he could not be parted from it. And though the constant threat of invasion scenario of England barely applies to the New World, its settlers could not shake the deeply embedded tradition of owning a firearm. Yet again, incidents in Europe have formed a new reason for civilians to keep their arms and for others who does not have one to secure one as well. King Charles I, who have been in constant struggle with parliament, have tried to organize a standing army that would be loyal to him. In a struggle against King Charles I who has organized a strong standing army in Ireland, the parliament called on its armed citizens and succeeded in disarming the King. But seeing the importance of a steady group of armed men, the civilians who were mustered was to become the standing army of the nation. At this point, the militia is now understood to be closely related with military function. The militia now denotes not just the ordinary civilians but those civilians that has military training and can be mobilized at once in a short notice. Apparently, the unclear meaning of ‘militia’ has created confusion in the interpretation of the second amendment. The National Defense Act of 1916, for example, defines militia as all able bodied citizens more than eighteen years old and not more than forty five years old who declare their intention to become a citizen of the United States.
District of Columbia v. Heller
One of the most intriguing landmark cases that have been discussed by Wrinkler in his book is that of the District of Columbia v. Heller. It should be noted though that the case was a staged one. Partly out of curiosity as to how the court would interpret the highly ambiguous clause of the Second Amendment, Dick Heller, a D. C. special police officer and the lawyers and constitutional scholars behind this case decided to challenge the law of the District of Columbia that prohibits not only the unauthorized carrying of a handgun but also setting certain restrictions on gun registrations as well as mandating that firearms should be kept unloaded and must have a trigger-lock mechanism. Heller, on the other hand, tried to apply for a handgun registration but he was refused by state authorities citing the gun control law and the second amendment. It should be noted though that Heller is considerably a part of the conventional definition of militia since he works with quasi-military functions and is authorized to carry a handgun while on duty. Together with several gun rights activists, Heller filed a lawsuit in the Federal District Court of Columbia citing his right to bear arms as stipulated in the second amendment. The district court’s initial decision upheld that gun control law of the District of Columbia. In the District Court’s interpretation, the second amendment applies only to state militias, which Heller is not included. The plaintiff appealed the case and got a different opinion from the Court of Appeals of the District of Columbia. The Court of Appeals disagreed with the District Court in a controversial 2 - 1 decision. The case was then escalated to the Supreme Court for a decisive ruling. Unfortunately, the Supreme Court is also as indecisive in their interpretation as the Court of Appeals but managed to pull-off a 5 – 4 decision in favor of the plaintiff and held that the second amendment does provide an individual the right to bear guns; deeming the gun control law of the District of Columbia as unconstitutional.
Scala’s Interpretation of the Second Amendment
The function of the militia as a necessary force for the stability of the nation greatly influenced the political thoughts of the framers of the United States constitutions. It is believed that the state is much stable if there is a well-regulated militia to protect it from ambitious tyrants. In drafting the Second Amendment, Patrick Henry proclaimed that it should be resolved whether a militia composed of gentlemen and freemen is the only stability of a free government . Henry proposed that the young American nation should keep a select militia that would eventually become the nation’s standing army. In the process, the majority of the population other than the militia would be disarmed . But looking back to the European experience where the militia was used for tyrannical purposes, this idea was abandoned. However, it could not be denied that a militia is necessary to establish a nation. And so in order to provide a check and balance towards the power of the militia, James Madison proposed that the constitution should guarantee the freedom of the civilians who are not related to military service to bear arms. For the same reason, Justice Antonin Scalia draws his interpretation to the traditional knowledge that has brought the Second Amendment in the first place. According to Scalia, the Second Amendment should not be interpreted in a technical sense but rather, in their normal and ordinary usage. For Scalia, the Second Amendment clause can be rephrases as such: “Because a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed”. Notice that this interpretation coincides with the traditional understanding of the framers of the American constitution when they laid out the controversial words of the Second Amendment. Evidently, the architects of the constitution would like to protect the state from any political powers that could make it unstable by arming its ordinary citizens. Scala thereby argue that the purpose of the Second Amendment is not to emphasize the use of firearms by the militia or those people related to military service but rather to emphasize the right of ordinary people to possess armaments regardless they are connected with military service or not. For the same reason, the gun law of the District of Colombia that prohibits the possession of firearms and enforces the restriction of the registration of firearms is unconstitutional.
Scala’s heavy reliance to history in his interpretation of the second amendment is quite inadequate to address the social changes that have occurred since the second amendment clause was adopted in the United States Constitution. Although it provided an acceptable solution to the District of Columbia v. Heller case, it does not guarantee a decisive interpretation of the second amendment. Evidently, there are certain circumstances in the past that is not applicable in the contemporary scenario. The rising trend of criminality due to the indiscriminate ownership of guns, for example, was not a feature of the early American society and may have not been anticipated by the framers of the constitution. At this point, it can be assumed that the debate regarding the second amendment is far from over yet; making Wrinkler’s book ‘Gunfight: The Battle Over the Right to Bear Arms in America’ very much appropriate to the present constitutional conflict regarding the interpretation of the second amendment in America.
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