6.0 CONSTITUTIONAL AND LEGISLATIVE ISSUES"

6.1 American Constitutional and Legislative History

The Second Amendment to the United States Constitution states: "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 fringed." These words have been subject to seemingly endless debate on the part of legal scholars, historians, and groups on both sides of the gun control issue in the United States.. The argument centers around the question of whether the Second Amendment referred to a collective right possessed by states to form armed militias to protect citizens from a tyrannical federal government or whether it guaranteed that all Americans had the right to own guns for their own protection.

The American gun lobby, spearheaded by the National Rifle Association, has subscribed to the second interpretation; that the Second Amendment protects individual rights. Warren Burger (1990), former Chief Justice of the United States Supreme Court, felt that the NRA's interpretation of, and publicity regarding, the Second Amendment constituted one of the greatest hoaxes perpetrated on the American public. In fact, the few Supreme Court rulings pertaining to the Second Amendment, as well as decisions by District and Circuit Courts, have overwhelmingly taken the collective view (Jacobs, 1995; Spitzer, 1995:38). No Federal court in the United States has ever invalidated a law regulating the private ownership of arms on Second Amendment grounds (Lewis, 1995). Furthermore, the American Bar Association's position is that: "Neither the United States Constitution nor any of its amendments grant any one the right to keep and bear arms" (Brady, 1989).