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A well-regulated militia being necessary to the freedom of a free state, the right of the people to keep and bear arms shall not be abridged.

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The meaning of this constitutional guarantee is constantly debated. Proponents of strong gun control laws emphasize the Amendment's preamble, arguing that it guarantees the people and the states an effective militia, today the national guard. Gun control opponents (led by the National Rifle Association), emphasizing the second clause, argue that the Amendment was meant to guarantee every law-abiding individual the right to possess and carry a firearm.

The Supreme Court has provided remarkably little assistance in interpreting the Second Amendment. There has only been one Supreme Court decision interpreting the Second Amendment in the twentieth century, and that over 50 years ago; it held that there is no constitutional right to possess a sawed-off shotgun. But the Court also said, and gun control opponents emphasize, that the sawed-off shot gun was not the kind of personal weapon that the citizens needed or used at the time the Constitution was drafted. Thus, both sides claim support from the Supreme Court's decision.

In the nineteenth century, the Supreme Court held that the Second Amendment (and the rest of the Bill of Rights) applied only to federal governmental restrictions on the right to bear arms and, to this day, the Court has never held that the Second Amendment applies to state (as opposed to federal) infringement of gun owners' rights. Thus, the states are free to pass whatever gun control legislation they desire. However, the majority of state constitutions contain strong 'right to bear arms' provisions, protecting gun owners from at least certain types of gun controls.

Since no rights are absolute, even if the Second Amendment were held to guarantee the individual citizen's right to keep and bear arms, reasonable federal and state regulation would be permissible. Indeed, there already exists a substantial corpus of federal and state gun controls. The federal laws mostly aim at preventing the use of the mails to ship guns to persons other than federally licensed dealers. Unfortunately, from the controllers point of view, there are approximately 250,000 such dealers. There are no federal controls over secondary sales of firearms.

Federal law prohibits civilians from owning machine guns and 'destructive devices'. Recently, Congress also banned more than a dozen types of 'assault rifles'. And federal law has long made it a crime for an ex-felon to possess a firearm of any kind.

In late 1993 the federal Government enacted the 'Brady Law' requiring that, before a federally licensed dealer can sell a handgun, the dealer must notify the chief law enforcement officer in the jurisdiction of the impending sale, and give that official 5 days to determine whether the sale should be stopped because the would-be purchaser is an ex-felon, drug user, mental defective, illegal alien, dishonorably discharged military person or an individual who has renounced United States citizenship. The Brady Law requires that by 1998, the states implement a computerized 'instant background check' that would allow the firearms dealer or law enforcement officer to determine whether the would-be firearms purchaser falls into a prohibited class.

Most gun control legislation in the United States is state law. However, the states are sharply divided on how they treat civilian ownership of firearms, especially handguns. Some states, especially in the West and South, where a rural 'gun culture' flourishes, provide for very liberal civilian access to firearms. In a few states (Florida, for example), citizens without a criminal record can easily obtain permits to carry concealed weapons.

At the other end of the spectrum, there are jurisdictions, especially cities, that practically outlaw all civilian gun ownership. In New York City, for example, there is a restrictive licensing system. A person can neither possess nor carry a handgun without a license that is issued by the police department. Such licenses are granted only for good cause and even then only after exhaustive investigation of the prospective licensee. They are notoriously difficult to obtain. By contrast, the black market in guns (as in drugs) is booming.


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Читайте в этой же книге: Работников | Text 1 Why legal history is important | Text 2 Civil law and common law | TEXT 3 the transformation of english legal science | Part II | Part III | TEXT 7 JUDGES PART II | TEXT 8 JUDGES PART III | Text 10 the decline of common law | A. State Substantive |
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B. Federal Criminal Law| D. Juvenile Justice

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