Many of us do not understand what this means and what benefits will it have for us. To evaluate and understand the benefits for us it is imperative that we peep inside the development of gun rights in US and then compare them with our constitutional system.
1. An Overview:Index
1. An Overview
2. District of Columbia v. Heller
2.1 District Court
2.2 Court of Appeals
2.3 US Supreme Court
3. The new Problem and its conclusion: McDonald v. Chicago
4. Gun Rights not absolute
5. What do we learn and how can we utilize this knowledge in India?
* External Links
The Second Amendment of the US 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 infringed".
Upon the plain reading of the above, there are many questions that come to one's mind. The foremost being, does this US constitutional amendment even grant a right to bear arms to individuals? This question was never touched upon by the courts in the US as it was a Pandora's Box, if opened would lead to a lot of problems. But unfortunately it could not be left unopened for long. It was not until 2008 that for the first time the US Supreme Court held that the second amendment also protects the individual right to bear arms.
To know more about the right to bear arms some historical developments are necessary. When Britain ruled over the American colonies there was a growing unrest among the residents of the colonies to fight for independence. They then formed small militias to fight and stockpiled arms and ammunition for them. Soon after the British empire imposed an embargo on the use of firearms. But during the struggle the British empire was forced to withdraw. The right to bear arms was therefore a very important right even though unwritten but very well acknowledged by the residents of the American colonies.
After gaining freedom the colonies further strengthened their militias to ensure that they remain independent. It is during this time that the American colonies started coming together and framing a US constitution was almost settled. One of the biggest problems which the independent colonies faced was what in case the power is given to the federal government, will the state government have no rights? To protect their right and independence the Bill of Rights was drafted that gave the right to the states to have their armed militia. Over the years as US became a stranger country the federal govt gained importance and the militias lost their significance. The right to bear arms was for the following purposes.
-> deterring undemocratic government;
-> repelling invasion;
-> suppressing insurrection;
-> facilitating a natural right of self-defense;
-> participating in law enforcement;
-> slave control in slave states.
As the time went by both the state and the federal government under the guise of national security and public safety started regulating the right to bear arms. Many states imposed laws that the residents of a specific city would not possess handguns. One of them was the District of Columbia. DC is a federal district and the capital of the USA. DC has a ban on its residents to own handguns. It was a calculated move of the residents to overturn the law. There were a few plaintiffs who had seen their neighborhoods that were children friendly become dwelling places for drug traffickers. It was their persistent effort that lead to the first case before the US Supreme Court.
2. District of Columbia v. Heller
The case was initiated in 2003 before the district court and went all the way up to the Supreme Court.
2.1 District Court
In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District Court dismissed the lawsuit.
2.2 Court of Appeals
On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal and struck down provisions of the Firearms Control Regulations Act as unconstitutional. The court held that the Second Amendment "protects an individual right to keep and bear arms", saying that the right was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)." They also noted that though the right to bear arms also helped preserve the citizen militia, "the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia."
The most important observation was:
The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock.""the handguns are "Arms" and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions".
2.3 US Supreme Court
The US Supreme Court had to answer Whether the following provisions, D.C. Code violated the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
It was for the first time after 1939 that the US SC was confronted with addressing the scope of the second amendment. The court held:
"The District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ... "
3. The new Problem and its conclusion: McDonald v. ChicagoThe Court based its reasoning on the grounds:
that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of "the people" elsewhere in the Constitution, and historical materials on the clause's original public meaning;
that the prefatory clause, which announces a purpose of a "well regulated Militia, being necessary to the security of a free State", comports with, but does not detract from, the meaning of the operative clause and refers to a well-trained citizen militia, which "comprised all males physically capable of acting in concert for the common defense", as being necessary to the security of a free polity;
that historical materials support this interpretation, including "analogous arms-bearing rights in state constitutions" at the time, the drafting history of the Second Amendment, and interpretation of the Second Amendment "by scholars, courts, and legislators" through the late nineteenth century;
While the Heller's case was a huge victory it left a question unanswered? DC being a federal district was regulated by the federal govt. But what about the state laws? Does the second amendment also give rights to the citizens where the gun laws are regulated by the respective state laws. This question was answered in McDonald v. Chicago. The Supreme Court held that gun rights could not be infringed by overarching state laws. This decision decided on June 28, 2010 had once again strengthened the gun rights in US.
4. Gun Rights not absolute
In both the decisions the US SC has very cautiously observed that the right to bear arms is not an absolute right. People who have a criminal record, are mentally unstable will not be allowed to bear arms. At the same time it has also been clarified that the govt. will be allowed to ban the carrying of firearms in sensitive places such as schools, universities, parks etc.
5. What do we learn and how can we utilize this knowledge in India?
The Indian Constitution is based largely on the US Constitution. Many of the fundamental rights seen under the Indian constitution have been adopted from the US constitution. It is a travesty that the second amendment was not incorporated in the Indian Constitution. Nevertheless Article 21 of the Indian Constitution that states "no person may be deprived of his life or personal liberty". The phrase life has been interpreted as a meaningful life, something more than just animal existence. Therefore if I am under a constant threat danger to my life from terrorists, where I am not sure if I would be able to see the sun tomorrow, then there is no difference between my life and the life of a chicken sitting at a butcher's chop.
The state of affairs in our country is pathetic. The Indian Police is the biggest organization that violates human rights. From custodial deaths to fake encounters, you name it and there are cases against the Indian police. I do not suggest that the police is not performing its job, but we cannot depend on them. One of the Indian judgments specifically states "the police is not to get rid of crime but to deter crime".
How many of us are comfortable going to a police station?
What is the attitude of the police towards a citizen of India?
those who have faced the police know it very well that it is one of the most corrupt departments. Be it the 84 hindu-sik riots, Godhra massacre, Babri Masjid attack, attack on christians, fake encounters in J & K, the police and the authorities have been a mute spectator. They act on the directions of the politicians. After the Mumbai attacks, the gun laws have been made more strict in our country?
It is now time for a well planned movement to tackle this problem. An illiterate politician, who does no even know how to speak properly and had numerous criminal cases pending against him is not only given Z plus security but is also allowed to have gun license. His entire family is given police security and when it comes to a common citizen there is no protection. Yet when a common man who abides the law seeks to have a gun license it is refused.
Are we not chickens at at the mercy of our government who can slaughter hundreds of us for achieving political milage. Be it Congress of BJP none of them have a clean record and no matter the want us without a firearm so that they can slaughter us any day.
If the govt. is so confident on the security measures it takes, then why do the politicians not travel without police security?
The Hellers case was a very meticulously planned case. Wikipedia narrates the background as:
It is upon us to carefully plan and execute our operation so that RKBA becomes a reality in India. It is our duty not only to protect our life but also our nation from threats foreign and domestic by cooperating with the authorities. Lathis cannot match the AK's. IFG has given us all a platform to communicate, and now its upon us all how we take it further.In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall, who had successfully led the challenges that overturned school segregation. They aimed for a group that would be diverse in terms of gender, race, economic background, and age, and selected six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black:
Shelly Parker – a software designer and former nurse who had been active in trying to rid her neighborhood of drugs. Parker is a single woman whose life had been threatened on numerous occasions by drug dealers who have sometimes tried to break into her house.
Tom G. Palmer – a colleague of Robert A. Levy at the Cato Institute and the only plaintiff that Levy knew before the case began. Palmer, who is gay, defended himself with a 9mm handgun in 1982. While walking with a friend in San Jose, California, he was accosted by a gang of about 20 young men who used profane language regarding his sexual orientation and threatened his life. When he produced his gun, the men fled. Palmer believes that the handgun saved his life.
Gillian St. Lawrence – a mortgage broker who lives in the Georgetown section of D.C. and who owns several legally registered long guns which she uses for recreation in nearby Chantilly, Virginia. It had taken St. Lawrence two years to complete the registration process. She wanted to be able to use these guns to defend herself in her home and to be able to register a handgun.
Tracey Ambeau (now Tracey Hanson) – an employee of the U.S. Department of Agriculture. Originally from St. Gabriel, Louisiana, she lives in the Adams Morgan neighborhood of D.C. with her husband, Andrew Hanson, who is from Waterloo, Iowa. They live in a high-crime neighborhood near Union Station in D. C. She grew up around guns and wanted one to defend her home.
George Lyon – a communications lawyer who had previously contacted the National Rifle Association about filing a lawsuit to challenge the D.C. gun laws. Lyon held D.C. licenses for a shotgun and a rifle, but wanted to have a handgun in his home.
Dick Heller – a licensed special police officer for the District of Columbia. For his job, Heller carried a gun in federal office buildings, but was not allowed to have one in his home. Heller had lived in southeast D.C. near the Kentucky Courts public housing complex since 1970 and had seen the neighborhood "transformed from a child-friendly welfare complex to a drug haven". Heller had also approached the National Rifle Association about a lawsuit to overturn the D.C. gun ban, but the NRA declined.
*External Links
New York Times: Supreme Court Rules That Gun Rights Apply Locally, http://www.nytimes.com/2010/06/29/us/29scotus.html?hp
CNN: High court strikes down Chicago handgun ban, http://www.cnn.com/2010/CRIME/06/28/us. ... tml?hpt=T1
