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12.00.00 - ЮРИДИЧЕСКИЕ НАУКИ 12.00.00 - SCIENCE OF LAW
УДК 342.537.46(73) А.П. АЛЕКСАНДРОВА
кандидат филологических наук, доцент, кафедра английской филологии, Орловский государственный университет E-mail: [email protected]
UDC 342.537.46(73)
A.P. ALEXANDROVA
Candidate of Philology, Associate Professor, Department of English Philology, Orel State University E-mail: [email protected]
ОГНЕСТРЕЛЬНОЕ ОРУЖИЕ И ВТОРАЯ ПОПРАВКА К КОНСТИТУЦИИ США FIREARMS AND THE SECOND AMENDMENT TO THE U.S. CONSTITUTION
В статье анализируется Вторая поправка к Конституции США в связи с ростом количества убийств, вызванных доступностью огнестрельного оружия; рассматриваются два основных подхода к интерпретации Поправки, а также цели, обстоятельства, при которых она была принята, и намерения ее авторов, без понимания которых нельзя понять ее смысл; представлена статистика жертв огнестрельного оружия и отмечены четыре важных пункта, которые могут снизить количество жертв.
Ключевые слова: Конституция США, Билль о правах, поправка, Вторая поправка, огнестрельное оружие, ополчение, законы, позволяющие носить оружие.
The author analyzes the Second Amendment to the U.S. Constitution in connection with the growth of the number of murders caused the availability of firearms. Two basic approaches that dominate interpretations of the Second Amendment, its purpose, the circumstances in which it was adopted, and the intentions of its authors without which it couldn't be understood are regarded as well. The statistics on the murders caused by firearms is suggested and four important points that can decrease of the number offirearms' victims are noted.
Keywords: the U.S. Constitution, the Bill of Rights, Amendment, the Second Amendment, firearms, militia, right-to-carry laws.
The paper throws some light on a long time concern and anxiety of foreign observers and Americans themselves - the widespread of firearms in the United States. It's been a rather complicated problem since the foundation of the American state and the formulation of the Second Amendment to the U.S. Constitution in the Bill of Rights adopted in 1789. It continues to be one of the most controversial parts of the Constitution because its meaning is strongly contested.
Amendment II (proposed September 25, 1789; ratified December 15, 1791) 'Right to Bear Arms' reads "A wellregulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed'.
The controversy stems from attempts to interpret the meaning of each of the clauses, to understand the original intent of the framers, and to interpret the contemporary relevance of the amendment in the context of changes in the nature of the militia, the increasing deadliness of firearms, and fierce debates over firearms in U.S. society.
There are two broad approaches that dominate interpretations of the Second Amendment. [3:612-614]
The first one is the collective rights perspective. According to the collective rights interpretation, the Second Amendment confers a collective right to bear arms in a governmentally organized, "well regulated militia," not an individual right to personal ownership. Underlining the first two clauses of the amendment, advocates of this position
argue that the founders were not arguing over the individual right to own and carry arms but were concerned with giving states the right to have organized militias as a counterbalance to federal power. Thus, supporters of the collective rights interpretation stress that the Second Amendment, however interpreted, does not preclude gun regulation. The majority of law review articles tended to support this approach, as have the courts up until the 1970s.
The second approach is the individual rights perspective. The individual rights interpretation, underlining the last clause of the amendment, argues that the Second Amendment establishes a constitutionally protected right for individuals to own and bear arms. Supporters of this approach sometimes refer to it as the "standard model," emulating the standard model in physics and apparently trying to put their interpretation beyond disputation. Many of them acknowledge that reasonable restrictions may be imposed on gun ownership. This approach received powerful support in 2001 when then Attorney General John Ashcroft endorsed it in a letter to the National Rifle Association. The Justice Department subsequently reversed its longstanding collective rights interpretation of the meaning of the Second Amendment in two briefs to the U.S. Supreme Court.
More recent interpretations have attempted to reconcile differences between collective and individual interpretations. Constitutional scholar Akhil Reed Amar argues that collective, or states' rights, interpreters fail to
© А.П. Александрова © A.P. Alexandrova
give enough weight to the Founders' equation of the militia with much of the adult, white male citizenry, while he faults individual rights advocates for ignoring that this was a right of all the "people," rather than persons, and of failing to note that the phrase bear Arms has a military meaning and does not refer to individual gun ownership for activities such as hunting or protection. He believes that the Fourteenth Amendment1 (1868) freed the Second Amendment from its connection to the militia and established it as an individual right. Some scholars (Uviller and Merkel) disagree with his point of view. They argue that while the Second Amendment originally referred to an individual right to bear arms in an organized, governmentally sponsored militia, they suggest that the amendment "fell silent" with the decay of the old militia and its eventual displacement by the National Guard. [3:613]
However, the meaning of the amendment cannot be understood without an understanding of its purpose, the circumstances in which it was adopted, and the intentions of its authors.
The first ten amendments to the Constitution - the Bill of rights2 - in some way repeated what the founding states had recorded in their own constitutions. But the US Constitution would have not been ratified in 1788 if the states had not had the confidence that it would include a national bill of rights.
People at that time were afraid of a new "monster" - a national government, and this very fact helps to understand the language and purpose of the Second Amendment. The guarantee of the First Amendment3 against the laws establishing any religion, and guarantees of freedom of religion, speech and the press were followed by the guarantee that had emerged from a deep-seated fear of the "national" or "constant" army. The same first Congress which approved the right to keep and bear arms limited the national army staff up to 840 people. Then Congress provided the Second Amendment.
In the debate on the proposed 1789 Bill of Rights Elbridge Gerry4 of Massachusetts argued that Militia was necessary for preventing the creation of a constant army which was viewed as a freedom destroyer. He supposed that when governments intended to infringe on people's rights and freedoms they always tried to destroy militia to build the army on its ruins.
It is clear from this that the need for the militia was the basis to guarantee the right to keep and bear arms; it was necessary to keep force in the state to protect its security. So the meaning of the Second Amendment is concluded in the word "because" and it exactly determines this warranty.
Today, of course, the "militia" serves a completely another purpose. The role of the militia, which existed 200 years ago, is assumed by the US armed forces now.
Some use these old fears to their advantage, mixing sporting guns - rifles, shotguns and even automatic rifles -with any firearms weapons. But, of course, there is a greater difference between sports and martial weapons.
A regulation concerning guns was perceived as an urgent need long ago; laws regarding concealed possession of weapons were generally accepted.
Let's turn to the U.S. history.
Food for three and a half million people who lived in the 13 original colonies substantially depended on hunting, and fire weapons were necessary to many of them for the protection from the Indians, and later - the French and the British. The basis of this need was an important concept that every healthy man in the 13 independent states should help his state and protect it.
Early opposition to the idea of the national or permanent Army was supported with the Articles of Confederation, which had been adopted eight years before the Constitution. The Confederation had no permanent army, and it did not want to have one. The militia was a temporary military union and that was the only "Army" it wanted to have. Since The Declaration of Independence to the victory at Yorktown in 1781 Commander in Chief of the voluntary armies George Washington was dependent on the states which sent him their volunteers.
When the militia of the State of New Jersey came under Washington's command in Valley Forge, they initially refused to take an oath "to the United States" saying that "our country is New Jersey." Volunteers of Massachusetts Bay, and other Virginians felt the same way. For the American of the XVIII century his state was his country, and his freedom was protected by the state militia recruited from his countrymen. The victory at Yorktown and the ratification of the Bill of Rights did not change the Americans' attitude toward the national army a decade later. They lived for years with the idea that each state had its own military units, and in the coastal states there were also their fleets. These people as well as their parents and grandparents remembered how monarchs had used permanent armies to harass their ancestors in Europe. The Americans do not want it. Militias of the states as well as guns and powder horns were as an integral part of life, as the car today. Mainly aristocratic officers had pistols and used them for duels.
It is not surprising that on this background the amendment concerning firearms appeared in a very simple wording requiring the need for "a good organized militia" -the Army of the state.
Over the past two centuries - with two world wars and several smaller -unfortunately it became clear that the Americans had no other choice but to keep a permanent national army, while still retaining "Militia" in the form of the National Guard, which cauld be quickly turned into the national defence forces.
The Americans have the right to defend their homes, and it's not subject to appeal. Nobody also seriously casts doubt that the Constitution protects the hunters' right to keep sporting rifles for hunting, as no one is going to question the right to keep fishing rods and other equipment for fishing at home or own cars. "Keep and bear arms" for hunting today is a kind of entertainment, but not the imperative of survival, as it was 200 years ago. Machine guns are not entertainment weapons and they need to be regulated.
The Americans should ask themselves a few questions. The Constitution does not mention cars and motor boats, but no one doubts the right to have a car. Equally undeniable
12.00.00 - roPHAHHECKHE HAyKH 12.00.00 - SCIENCE OF LAW
right of the states is to regulate purchase or transfer of the vehicle and the right to issue the permit for its possession and driving. In some places bikes and even some breeds of domestic dogs must be registered.
Moreover, the Second Amendment has never been incorporated through the Fourteenth Amendment to be binding on individual states. This means that states are free to regulate, if not ban, guns if they so wish.
Right-to-carry laws permit individuals who meet certain "minimally restrictive" criteria (completion of a background check and gun safety course) to carry concealed firearms in most public places. [http://www.justfacts.com/ guncontrol.asp]
Each state has its own laws regarding right-to-carry and generally falls into one of three main categories:
1. "shall-issue" states, where concealed carry permits are issued to all qualified applicants;
2. "may-issue" states, where applicants must often present a reason for carrying a firearm to an issuing authority, who then decides based on his or her discretion whether the applicant will receive a permit;
3. "no-issue" states, where concealed carry is generally forbidden.
There are 40 "shall-issue" states:
Alaska Arizona Arkansas Colorado
Florida Georgia Idaho Indiana
Iowa Kansas Kentucky Louisiana
Maine Michigan Minnesota Mississippi
Missouri Montana Nebraska Nevada
New Hampshire New Mexico North Carolina North Dakota
Ohio Oklahoma Oregon Pennsylvania
Rhode Island South Carolina South Dakota Tennessee
Texas Utah Vermont Virginia
Washington West Virginia Wisconsin Wyoming
It is necessary to note that Alaska, Arizona, Vermont, and Wyoming allow lawful firearm owners to carry concealed firearms without a permit. All other shall-issue states require firearm owners to obtain a permit to carry concealed firearms.
Alabama, California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and New York are may-issue states. May-issue states vary significantly in the implementation of their laws. Some, such as Connecticut, act effectively as shall-issue states, while others, such as New Jersey, act effectively as no-issue states. There is only one no-issue state - Illinois. Here are some facts and figures on guns and crime, compiled by the NBC News research department:
- Every year in the U.S., an average of more than 100,000 people are shot, according to The Brady Campaign
To Prevent Gun Violence.
- Every day in the U.S., an average of 289 people are shot. Eighty-six of them die: 30 are murdered, 53 kill themselves, two die accidentally, and one is shot in a police intervention, the Brady Campaign reports.
- Between 2000 and 2010, a total of 335,609 people died from guns - more than the population of St. Louis, Mo. (318,069), Pittsburgh (307,484), Cincinnati, Ohio (296,223), Newark, N.J. (277,540), and Orlando, Fla. (243,195) (sources: CDF, U.S. Census; CDC).
- One person is killed by a firearm every 17 minutes, 87 people are killed during an average day, and 609 are killed every week.
The latest data from the FBI's uniform crime reports provides a fascinating picture of the use of firearms in crimes across America. [http://www.theguardian.com/ news/datablog/2011/jan/10/gun-crime-us-state].
The US has the highest gun ownership rate in the world - there are 89 guns for every 100 Americans, compared to 6 in England and Wales. In 2011 (the latest year for which detailed statistics are available) there were 12,664 murders in the US. Of those, 8583 were caused by firearms.
The Federal Bureau of Investigation statistics on Murder Violence by weapon 2008-2012:
Weapons 2008 2009 2010 2011 2012
Total firearms: 9,528 9,199 8,874 8,653 8,855
Handguns 6,800 6,501 6,115 6,251 6,371
Rifles 380 351 367 332 322
Shotguns 442 423 366 362 303
Other guns 81 96 93 97 110
Firearms, type
not stated 1,825 1,828 1,933 1,611 1,749
Warren Burger5 believed if the Americans wanted to stop the epidemic of murders caused the availability of firearms in their society, it was reasonable to require four important points. In order to purchase firearms it is obligatory to submit a petition with the data on the age, place of residence, place of work, occupation and criminal record of a submitter. This petition shall be subject to inspection for a period of ten days (if there is no proven need for hasty) before a permit will be issued. Firearms transfer in another person's hands is carried out in the same manner as in the case with the transmission of a vehicle. The manufacturers should take "ballistic fingerprints" of firearms, which will be filed to purchase authorization documents in case if a bullet is found in the victim's body, it'll be easier for police to find the culprit.
The American people should solve this complicated problem themselves if they want to preserve the inner peace promised by the Constitution.
Comments
1 Amendment XIV - Citizenship, Representation, and Payment of Public Debt
Citizenship
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection ofthe laws.
Apportionment of Representatives
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in portion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Disqualification for Public Office
Section 3. No person shall be a Senator or Representative in Congress or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Public Debt, Guarantee of
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Power of Congress
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Proposed June 13, 1866; ratified July 9, 1868; certified July 28, 1868
2 the Bill of Rights - During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a "bill of rights" that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered.
On September 25, 1789, the First Congress of the United States therefore proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two proposed amendments, which concerned the number of constituents for each Representative and the compensation of Congressmen, were not ratified. Articles 3 to 12, however, ratified by three-fourths of the state legislatures, constitute the first 10 amendments of the Constitution, known as the Bill of Rights. [http://www.archives.gov/exhibits/charters/bill_of_rights.html]
3 Amendment I - Restrictions on Powers of Congress
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Proposed September 25, 1789; ratified December 15, 1791.
4Elbridge Gerry - was an American statesman and diplomat. As a Democratic-Republican he was selected as the fifth Vice President of the United States (1813-1814), serving under James Madison. He opposed British colonial policy in the 1760s, and was active in the early stages of organizing the resistance in the American Revolutionary War. Elected to the Second Continental Congress, Gerry signed both the Declaration of Independence and the Articles of Confederation. He was one of three men who attended the Constitutional Convention in 1787 but refused to sign the United States Constitution because it did not then include a Bill of Rights. After its ratification he was elected to the inaugural United States Congress, where he was actively involved in drafting and passage of the Bill of Rights as an advocate of individual and state liberties. Gerry was at first opposed to the idea of political parties, and cultivated enduring friendships on both sides of the political divide between Federalists and Democratic-Republicans.
5WarrenBurger - retired Supreme Court Chief Justice, who wrote opinions that legally defined obscenity, established busing as a tool to end segregation and forced President Nixon to release the Watergate tapes. The nation's 15th chief justice, he served from 1969 to 1986, the longest tenure this century. At the Supreme Court, he was known as a man with an eye for detail. His administrative innovations included the Institute for Court Management, the National Center for State Courts. He played a key role in bringing about technological advances and better training for judges and lawyers. Burger was also an outspoken opponent of televising federal court proceedings, especially the Supreme Court's public argument sessions in which lawyers present their cases to the justices. Burger had owned sporting guns all his life, but in 1990 he supported stricter regulation of gun owners and would-be gun buyers to put a stop to "mindless homicidal carnage." Sixteen years earlier, Burger's ownership of a pistol had made news when the armed chiefjustice confronted a newspaper reporter who had gone to Burger's home late one night seeking comment. [http://www.arlingtoncemetery.net/weburger.htm]
Библиографический список (References)
1. Encyclopedia of the United States Constitution. Edited by Leonard W. Levy, Kenneth L. Karst. Macmillan reference USA. An imprint of the Gale Group, New York, 2000.
2. Panchyk R. The Keys to American History: Understanding Our Most Important Historic Documents. Chicago Review Press, Incorporated, 2008.
3. SchultzD. Encyclopedia of the United States Constitution. New York, 2009.
4. The Constitution of the United States.
5. The Princeton Encyclopedia. Richard R. John, Ira I. Katznelson, Jack N. Rakove, Julian E. Zelizer; editor Michael Kazin. Princeton University Press, 2010.
6. A.P. Alexandrova. Federalism in the United States: Study guide for students of universities, institutes and faculties of Foreign Languages, Faculty of Law Orel: Orel State University. 2009. 141 p. (in English)
7. http://usnews.nbcnews.com/_news/2013/01/16/16547690-just-the-facts-gun-violence-in-america7lite
8. http: //www. americanhistory. about. com
9. http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/offenses-known-to-law-enforcement/ expanded-homicide/expanded_homicide_data_table_8_murder_victims_by_weapon_2008-2012.xls
10. http: //www. gunpolicy. org/firearms/region/united-states
11. http://www.justfacts.chttp://www.fbi.gov/om/guncontrol.asp
12. http: //www. law. cornell.edu/constitution/amendmentxiv
13. http://www.ourdocuments.gov/doc.php?flash=true&doc=43
14. http://www.questia.com/library/law
15. http://www.theguardian.com/news/datablog/2011/jan/10/gun-crime-us-state
