The Right to Bear Arms vs the Right to life: The Balancing Test

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”: Declaration of Independence, July 4 1776

“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”. Second Amendment of the United States Constitution, ratified December 15, 1791

In the wake of 9/11, the face of terror caused by mass murder was synonymous with Muslim fundamentalism and suicide bombing, externally planned nefarious activities carried out within the United States territory (The FBI defines a mass murder as one in which four or more people are killed). In recent times however, the face of terror has donned an internal look, a look that has been propped and spruced up by legitimate means to wit the Constitution. The Second Amendment as stated above authorizes any adult person to acquire and own firearms albeit after a background check has been performed. Unfortunately, legal ownership and permits to carry a concealed gun are somewhat lax in the U.S. And there lies the terror within.

There are an estimated 270 million guns in the hands of civilians in the United States, making Americans the most heavily armed people in the world per capita(CNN). The United States has a murder rate that is nearly seven times higher than the average murder rate in other high-income countries and a nearly 20 times higher murder rate with guns. In fact, more than 30,000 people die every year from guns in the U.S., and more than 400,000 are victims of nonfatal crime committed with guns (CNN). This means that an American is much more likely to die at the hands of gun wielding fiends than at the hands of suicide bombers. The following examples bear credence to this fact: April 20 1999 Columbine shooting (15 dead), November 5 2009 Fort Hood shooting (13 dead), April 3 2009 Binghamton civic center shooting (14 dead) in upstate New York, April 16 2007 Virginia Tech massacre (32 dead), January 8 2011 assassination attempt on Rep. Gabrielle Giffords, D-Arizona, in Tucson (6 dead), April 2 2012 shooting rampage at Oikos University in Oakland (7 dead), July 20 2012 Colorado movie theatre shootings (12 dead) in addition to assassinations of John F. Kennedy, Martin Luther King of almost half a century ago, attempted assassination of Ronald Reagan and a host of unreported daily drive by shootings.

Legal scholars have weighed in on whether the second amendment should be construed stricto sensu, based on a strict and literal definition of the language with no other equitable considerations or whether to look at the “intent” of the framers’ language in order to interpret the language extensively to meet current standards of human conduct and complexity of society. The 2008 landmark case of District of Columbia v. Heller put all the speculation to rest by a narrow interpretation of the language used. It was held by the Supreme Court that the Second Amendment of the US Constitution guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. The Court further held that the provisions of the Firearms Control Regulations Act of 1975 infringe an individual’s right to bear arms as protected by the Second Amendment. The said law banned residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms, as well as prohibited possession of unregistered firearms. Exceptions to the ban were allowed for police officers and guns registered before 1976. The law also required firearms kept in the home to be “unloaded, disassembled, or bound by a trigger lock or similar device” thus amounting to a prohibition on the use of firearms for self-defense in the home.

The question of whether the Second Amendment extends to the states was addressed by McDonald v. Chicago where the Supreme Court further determined that the right to keep and bear arms for self defense in one’s home is fully applicable to the states through the Due Process Clause of the Fourteenth Amendment. Currently, about half of the fifty states have loosened gun laws to allow citizens to carry weapons with them almost anywhere they go. In Georgia, Arizona, Tennessee and Virginia, it’s even legal to carry a gun into a bar.

Americans are split between those who approve of current gun-control laws and those who would like more restrictive laws. A 2011 Pew poll splits almost evenly: “49% of Americans say it is more important to protect the rights of Americans to own guns, while 46% say it is more important to control gun ownership.” Three-quarters of Americans however still want to keep the right to own handguns, which kill only at close range. Proponents of gun rights argue that gun control is irrelevant to mass shootings, however mass murderers often use firearms with large ammunition capacity that are completely unnecessary for civilian usage. James Holmes, the perpetrator of the Colorado shootings allegedly shot 70 people within minutes with an assault rifle with a 100-round drum magazine and was further armed with a shotgun and two handguns, all of which were legally obtained.

Although laws are being driven by politics, it is considered political suicide for any of the parties to address issues of gun control. The party that will succeed in curbing gun ownership and restricting rights may never have the majority of each house till the next century. That notwithstanding, there is ample need to address the high rates of gun-related crime and death in the United States. The Declaration of Independence enshrines three basic rights: the rights to life, liberty, and the pursuit of happiness. The right to life is the only fundamental right, from which all other rights are derived. The right of life means that a human being has a fundamental right to live. Also this human being has the right not to be killed by another human being. Stricter regulations of gun sales to reduce death by gun violence, one that puts public safety ahead of the interests of the gun industry and gun enthusiasts, banning firearms and ammunition clips that hold more than 10 rounds, licensing gun owners, registering firearms, and banning private ownership of handguns with “reasonable limited exceptions” for “police, military, licensed security guards, antique dealers and licensed pistol clubs where firearms are kept on the premises are all measures that should be taken into consideration.

In matters of interpretation by the courts, the balancing test approach may need to be considered instead of the strict construction method that has clearly been employed in the gun control debate. Strict construction is a legal philosophy of judicial interpretation in which the original intent of the constitution holds that the Constitution means exactly what it says, and is therefore not open to interpretation or implication. Balancing tests are often used for determining the constitutionality of laws and regulations touching on constitutional rights and are subjective in nature. The Court uses the balancing approach to weigh competing interests and to decide cases where constitutionally protected individual rights conflict with governmental interests. Thus the right to bear arms and the right to life need to be placed on an equal scale of justice in order to determine whether the governmental duty of preserving life of its citizens outweighs their constitutional given right to own weapons for whatever purpose and vice versa. It does not require any degree of perspicacity to know that the outcome of such debate will go a long way in evaluating the humanity quotient of a society.

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