Guns and the Constitution: 3 Lessons for High School Students

 

When the founders of the United States approved the Second Amendment to the Constitution, what did they mean by it? On the one side are the National Rifle Association, other guns' rights organizations and millions of gun owners who focus on the words, "the right of the people to keep and bear Arms shall not be infringed." On the other are the Brady Campaign to Prevent Gun Violence, other gun control organizations, and millions of nongun owners who focus on the words that come first, "A well regulated Militia, being necessary to the security of a free State" as condition for the right to keep and bear arms.

 

What are "Arms"? Flintlock rifles? Pistols? AK-47s? Machine guns? Hand grenades? Nuclear weapons? What right, if any, "to keep and bear" them does the Constitution guarantee individuals? What right, if any, does Congress have to regulate them?

 

In the United States, where 533,450 victims of violent crimes in 2000 say they faced someone with a firearm, where more than 11,000 were murdered with firearms, and where almost three quarters of the total homicides among children in the world occurred among U.S. children, such questions deserve attention. The following lessons provide an introduction to them.

 

 

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LESSON ONE

 

Distribute the reading below.

 

 

 

1. In 1998, 3,792 American children and teenagers died by gunfire.

 

2. In the school year 1998-1999, 3,500 students were expelled for bringing a gun to school.

 

3. Death by firearms for American kids 14 and under is nearly 12 times higher than it is for kids in 25 other industrialized nations combined.

 

4. For every American kid killed with a gun four more are wounded.

 

5. From 1993-1997 there was an average of 1,621 murders by Americans under 18.

 

6. More than 11,000 murders with firearms are committed yearly in the U.S.

 

7. About 30,000 Americans die yearly from gunshots—murders, suicides, accidental shootings.

 

8. Many states, including New York and Pennsylvania, do not hold adults responsible if they leave loaded guns around children and do not have any safety standards for the child-safety locks that are sold with guns.

 

9. Texas does not restrict gun possession by children, allows the purchase of as many handguns at a time as a purchaser wants and permits people to carry hidden handguns in public.

 

*Sources: All of the above statistics are cited at the website for the Brady Campaign to Prevent Gun Violence. In each case the website provides its sources, such as the Journal of the American Medical Association, the Center for Disease Control and Prevention, the National Center for Health Statistics, and the U.S. Department of Education.

 

When students have finished with the reading, tell them that the class will now try to consider how these statistics might be interpreted. In short, what conclusions should we draw? What meanings should we give them? For this purpose, involve students in a moving opinion poll.

 

A moving opinion poll is a way to get students up and moving as they place themselves along a STRONGLY AGREE-STRONGLY DISAGREE continuum according to their opinions about specific statements. Create a corridor of space in your room from one end to the other end that is long enough and wide enough to accommodate the whole class. Make two large signs and post them on opposite sides of the room: STRONGLY AGREE; STRONGLY DISAGREE.

 

Explain to students: "You will be participating in a moving opinion poll. Each time you hear a statement, move to the place along the imaginary line that most closely reflects your opinion. If you strongly agree, move all the way to one side of the room; if you strongly disagree, move all the way to the opposite side of the room. You can also place yourself anywhere in the middle, especially if you have mixed feelings about the statement. After you have all placed yourselves, I will invite people to share why they are standing where they are. This is not a time to debate or grill each other. Rather, this is a way to check out what people are thinking and get a sense of the different ways people view the issue."

 

 

1. Only soldiers, police and other security people should be allowed to have guns.

 

2. People should be able to have any kind of gun they want because the Constitution says it's a basic right.

 

3. Gun ownership should be restricted to licensed hunters and registered individuals who want a gun for home self-defense.

 

4. People should be able to own a gun only if has safety features, such as a proper child safety lock.

 

5. Adults should be held criminally responsible if they leave loaded guns around children.

 

6. The U.S. has a high murder rate with firearms because Americans have so many of them.

 

7. The U.S. has a high murder rate with firearms because of such problems as poverty and racism.

 

8. Murders and other crimes with firearms result from inadequate enforcement of laws the U.S. already has.

 

Teachers may want to consider keeping a record of student responses and repeating the moving opinion poll at the conclusion of this set of lessons to see what differences in responses students might have.

 

 

 

Divide the class into groups of four to six students. Then distribute copies of Student Reading 2 below. Have students read the Second Amendment and the brief case studies. Then give them ten to fifteen minutes to see if the group can achieve unanimity on an answer to the question following each. Their decision may be "yes," "no," or "uncertain." The group should select one person to report and explain to the class its decision or, if divided, decisions.

 

 

 

1. A judge issued a domestic violence restraining order to Timothy Joe Emerson, forbidding him from coming near his estranged wife and young daughter. Federal law prohibits people who are under a restraining order from possessing a gun. He was therefore denied a firearm. Later he was indicted for allegedly threatening his wife and daughter with a pistol. Emerson appealed the indictment on Second Amendment grounds.

 

Question: Should the federal law prohibiting possession of a firearm in this circumstance be declared a violation of Emerson's Second Amendment rights and his indictment therefore unconstitutional?

 

 

2. John Lee Haney walked into a police station and told an officer that he had two unlicensed machine guns and that the federal government lacked the authority to do anything about it. The police found one machine gun in Haney's car, the other in his house. Section 922 (o) of Title 18 of the U.S. code provides that it "shall be unlawful to transfer or possess a machine gun." Haney was indicted, convicted and sentenced to 33 months in prison. Haney appealed his conviction on Second Amendment grounds.

 

Question: Should Haney's conviction be declared a violation of his Second Amendment rights and be overturned?

 

For student information after each discussion is completed:

 

1) In the Emerson case the judge for the U.S. District Court for the Northern District of Texas dismissed the indictment and ruled that the federal law denying guns to those under restraining orders is an unconstitutional infringement of the Second amendment. An appeal to the U.S. Court of Appeals for the Fifth Circuit reversed the decision, reinstating the charges and upholding as constitutionally valid the federal law prohibiting Emerson from possessing a firearm. The U.S. Supreme Court refused to hear an appeal.

 

2) In the Haney case the Supreme Court declined to hear an appeal from a lower court ruling that there is no constitutional right to own a machine gun.

 

What are student reactions to these decisions? Why? What questions do they have? How might they be answered?

 

 

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Assignment: Student Reading 3

 

Choose from two possible approaches to this assignment:

 

1) After reading "Three Views of the Second Amendment," students should write down and come to the next class with a) clarifying questions that would help them to understand better any interpretations of the Second Amendment; and b) a short paragraph stating their own interpretation of that amendment. Specifically, does the Second Amendment guarantee the right of an American to possess any weapon? Does the Second Amendment allow for governmental regulation of weapons possession?

 

2) Select one of the views presented. Ask students to come to class prepared to play the "believing game." (See "Teaching Critical Thinking" on this website for a detailed presentation of this "game.")

 

 

 

 

"The language and intent of the framers of the Second Amendment were perfectly clear two centuries ago. Based on the English Common Law, the Second Amendment guaranteed against federal interference with the citizen's rights to keep and bear arms for personal defense. Too, the revolutionary experience caused our forebears to address the need for the people to maintain a citizen-militia for national and state defense....An armed citizenry instead of a standing army was viewed as preventing the possibility of an arbitrary or tyrannical government.

 

"....James Madison, who noted in the Federalist Papers that Americans had 'the advantage of being armed,' which was lacking in other countries, where the governments are afraid to trust the people with arms," authored the Second Amendment. It was based on the Virginia bill of rights—and similar protections against state interference with that fundamental right....

 

"Since the adoption of the Second Amendment...there have been two methods of trying to destroy that fundamental freedom. The anti-gunners' first approach is, simply, to deny that a key provision of the Bill of Rights was ever intended to protect individuals. They can never cite an 18th century source for their claim that the Bill of Rights, or any provision of it, was intended to protect the 'rights' of anyone but individuals....Sometimes they also allege that modern firearms were unforeseen (and)....that the Second Amendment is out of date and obsolete in a modern age. If the Second Amendment is to be viewed as nothing more than a dusty 18th century relic...then what about the First Amendment? How can those civil libertarians who forcefully denounce each and every abridgment of the First, remain absolutely silent before each and every attempted infringement of the Second?

 

"....The second—and in some ways more serious—threat to our freedoms is the incremental approach. Some lawmakers have deserted gun owners, claiming to support the right to keep and bear arms but also saying that right must be 'balanced' with the needs of society as a whole. Some also claim that banning certain guns, or parts of guns, or features of guns doesn't constitute a serious infringement of rights. They claim society's 'greater good' outweighs the individual right to own a semi-auto with a large-capacity magazine, or a large capacity magazine itself, or...

 

"For 130 years the National Rifle Association has stood in opposition to all who step-by-step would reduce the Second Amendment right to keep and bear arms to a privilege granted by those who govern. NRA continues to fight against those who would dictate that American citizens should seek police permission to exercise their constitutional rights."

 

 

"When the U.S. Constitution was adopted, each of the states had its own 'militia'—a military force comprised of ordinary citizens serving as part-time soldiers. The militia was 'well-regulated' in the sense that its members were subject to various requirements such as training, supplying their own firearms, and engaging in military exercises away from home....

 

"The 'militia' was not, as the gun lobby will often claim, simply another word for the populace at large. Indeed, membership in the 18th century militia was generally limited to able-bodied white males between the ages of 18 and 45—hardly encompassing the entire population of the nation.

 

"The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III's troops fresh in their minds, many...feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written to prevent the federal government from disarming the state militias.

 

"....We no longer have the citizen militia like that of the 18th century....As a matter of law, the meaning of the Second Amendment has been settled since the U.S. Supreme Court ruling in U.S. v. Miller (1939). In that case, the Court ruled that the 'obvious purpose' of the Second Amendment was to 'assure the continuation and render possible the effectiveness of the state militia.' Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law barring felons from possessing guns in 1980....

 

"In 1991, former Supreme Court Chief Justice Warren Burger referred to the Second Amendment as 'the subject of one of the greatest pieces of fraud...on the American public by special interest groups that I have ever seen in my lifetime...(the NRA) has misled the American people...The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon.'....

 

"The rights guaranteed by the Constitution have never been absolute. The First Amendment protects the freedom of the press, yet libel laws prevent newspapers from printing malicious lies about a person. The First Amendment also protects free speech, yet one cannot yell 'Fire' in a crowded theater....The vast majority of the American people support reasonable gun control laws and view them as necessary to reduce the level of gun violence in this country. The framers of the Constitution would surely agree."

 

 

"The national ACLU is neutral on the subject of gun control. We believe that the Constitution contains no barriers to reasonable regulations of gun ownership. If we can license and register cars, we can license and register guns. Most opponents of gun control concede that the Second Amendment certainly does not guarantee an individual's right to own bazookas, missiles or nuclear warheads. Yet these, like rifles, pistols and even submachine guns, are arms. The question therefore is not whether to restrict arms ownership, but how much to restrict it. If that is a question left open by the Constitution, then it is a question for Congress to decide....

 

"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment (as set forth in the 1939 case, U.S. v. Miller) that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms."

 

A Note on the Miller Case and an NRA View of It:

 

In this case two bootleggers, Jack Miller and Frank Layton, were charged with violation of the National Firearms Act of 1934. On Second Amendment grounds, they challenged the constitutionality of the law, which required payment of a $200 tax on the sawed off shotgun they owned. A federal trial court decided that that this law did violate the defendants' Second Amendment rights. The U.S. government appealed the case to the Supreme Court, which ruled in 1939 that the defendants' right to possess arms was limited to those that had a "militia" purpose and returned the case to the lower court to decide if a sawed off shotgun was a "militia-type weapon." In the meantime, Miller was murdered and Layton disappeared. The lower court abandoned the case.

 

The NRA view is that the Supreme Court "held that the entire populace constituted the 'militia.'" And since "the court did not require that Miller and Layton...be members of the National Guard or Armed Forces in order to claim Second Amendment protection, (they) had a right to claim individual Second Amendment protection. Thus, the case stands for the proposition that 'the people,' as individuals..., had the constitutionally protected Second Amendment right to keep and bear any arms that could be appropriate for militia-type use."

 

 

Since the Miller decision and until May 2002, the U.S. government's view was that the Second Amendment protects only the right of members of state militias to own firearms. This position has given Congress authority to regulate the possession and use of firearms by individuals. But on May 6, 2002, the Justice Department told the Supreme Court that the Constitution "broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal abuse."

 

The NRA's chief lobbyist, Chris Cox, hailed this new position: "The NRA has always felt that the Second Amendment is unequivocal in its intent that the right to bear arms is an individual right." In an editorial (5/14/02) The New York Times declared this new government position is "at odds with both history and the Constitution's text....The immediate effect of the Bush Justice Department's expansive reading of the Second Amendment is to undermine law enforcement by calling into question valuable state and federal gun restrictions on the books, and by handing dangerous criminal a potent new weapon for challenging their convictions."

 

 

 

If you chose the first approach for the assignment:

 

1. Consider clarifying questions with the class.

 

2. Divide the class into small groups to share their interpretations of the Second Amendment. Each student should have the opportunity to read his/her paragraph. Is the writer's view clear? How convincing is the writer? The group should also select a reporter to summarize the viewpoints presented.

 

3. Reports and class discussion. This might also be a good time for the class to examine the Justice Department's new position on the meaning of the Second Amendment.

 

 

If you chose the second approach for the assignment (which calls for a more detailed, lengthier inquiry):

 

1. Divide the class into small groups for "the believing game."

 

2. Have students discuss their reactions.

 

3. Subject viewpoints to "the doubting game." Proceed as suggested in "Teaching Critical Thinking" with inquiries based on student questions.

 

 

 

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A SUPPLEMENTARY READING

Because gun violence statistics are frequently used in the debate over proposed firearm legislation, you might ask students to consider the following additional reading and the questions raised by it.

 

 

 

1. The FBI estimates that more than 11,000 murders were committed in the U.S. in 2000 with firearms. This is a firearms murder rate of 3.72 per 100,000.

 

2. According to the National Crime Victimization Survey, 533,470 victims of serious violent crimes (rape and sexual assault, robbery and aggravated assault) in the U.S. in 2000 stated that they faced an offender with a firearm.

 

3. Guncite reports that in 1999 39 percent of U.S. households possessed one or more guns; 24 percent possessed handguns.

 

Here are some comparative statistics with other countries assembled by Guncite from various official sources (all for the 1990s):

 

1. In England and Wales, where 4.7 percent of households have guns, the firearms murder rate is 0.11 per 100,000.

 

2. In Germany, where 8.9 percent of households have guns, the firearms murder rate is 0.22 per 100,000.

 

3. In Canada, where 29.1 percent of households have guns, the firearms murder rate is 0.76 per 100,000.

 

4. In Australia, where 19.4 percent of households have guns, the firearms murder rate is 0.44 per 100,000

 

5. In Switzerland, where 27.2 percent of households have guns, the firearms murder rate is 0.58 per 100,000.

 

Questions:

 

1. The U.S. has a relatively high gun murder rate and relatively weak gun controls. England and Wales, with strict gun controls, have very few gun murders. Does this show that gun control is effective in reducing gun murder rates? Why or why not?

 

2. England and Wales had a gun murder rate much lower than the U.S. before it established strict gun controls. Does this information change your answer to the first question? Why or why not?

 

3. In Switzerland and Canada, where gun ownership is relatively high, the gun murder rates are very low. Does this show that having lots of guns doesn't necessarily mean lots of gun murders? Why or why not?

 

4. Why does the U.S. have more than 11,000 gun murders a year and Switzerland and Canada have hardly any despite the fact that in all of those countries more than one-quarter of households own guns?

 

This last question is especially difficult to answer. There appear to be many factors, some perhaps much more important than gun ownership, that influence gun murder rates. In the U.S. what might some of those factors be?

 

Answers to this question could lead to an extended class inquiry into violence in U.S. history. Useful sources might include the 1969 study, "The History of Violence in America: A Report to the National Commission on the Causes and Prevention of Violence" by Hugh David Graham and Ted Robert Gurr and the 1970 report "To Establish Justice, To Insure Domestic Tranquility: The Final Report of the National Commission on the Causes and Prevention of Violence." The authors of the latter report conclude:

 

"Whether guns cause violence, contribute to it, or are merely coincidental to it has long been debated. After extensive study we find that the availability of guns contributes substantially to violence in American society. Firearms, particularly handguns, facilitate the commission and increase the danger of the most violent crimes....Firearms accidents, while they account for only a small percentage of all accidents, cause thousands of deaths and injuries each year.

 

"This relationship between firearms and violence tends to obscure two other important facts bearing on the firearms question. First, the vast majority of gun owners do not misuse firearms....Second, in attending to the firearms problem, we must not forget that the root causes of American violence go much deeper than widespread gun ownership. Firearms generally facilitate, rather than cause, violence."

 

 

 

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For Further Inquiry

 

There are many possible questions for further student inquiry. Besides those raised by students themselves, the following are a sampling of those worth consideration.

 

1. Why was the Second Amendment included in the Bill of Rights? What meaning did the founders of the U.S. give it?

 

2. What is the controversy over Michael Bellesiles' book, The Origins of a National Gun Culture?

 

3. What is the role of contributions to politicians running for public office in the gun control controversy?

 

4. Study a sampling of state gun control laws. What have been their effects? How can you tell?

 

5. Why did Attorney General John Ashcroft refuse to permit the FBI to cross-check a record of approved gun purchases against a list of terrorist suspects?

 

6. What is the controversy over the federal law on ownership of assault weapons?

 

7. What gun control laws does the Brady Center To Prevent Gun Violence support and why?

 

8. Why does the U.S. have the highest rate of childhood firearm murders among all of the industrialized countries?

 

9. How might convicted criminals use the U.S. Justice Department's new position on the Second Amendment to overturn those convictions?

 

 

National Rifle Association: nra.org

Brady Center To Prevent Gun Violence: bradycenter.org

American Civil Liberties Union: aclu.org Guncite: guncite.com

American Bar Association: abanet.org

Bureau of Justice: usdoj.gov

 

San Francisco Chronicle, 12/15/02