A well-regulated militia, being necessary to a free state, the right of the people to keep and bear arms shall not be infringed. Second Amendment to the Constitution of the United States.
Winkler, A. 2007. Scrutinizing the Second Amendment. Michigan Law Review, 105.
Winkler analyzed the individual-rights view to gun ownership and its challenge in court citing the Second Amendment and surmised that the individual-rights view would survive challenges in most states. There are forty-two states that recognize the right of its citizens to bear arms and when their laws are challenged in court they rely on the reasonable regulation test to uphold their gun laws even under strict Federal scrutiny.
Hardy, D.T. 2011. The resent rise, and more recent demise of the “collective right” interpretation of the Second Amendment.
In 2008, District of Columbia v. Heller (Hardy 2011) held that the Second Amendment guaranteed the right of a person to posses a gun for personal use. For decades prior to Heller the courts had interpreted the Second Amendment as protecting the right of individuals to carry arms but only as a “collective right” for the benefit of the State and not for personal use. Hardy analyzed the history of the court’s interpretation of the Second Amendment and found that its original interpretation is in line with the Heller ruling. The courts began to deny the right for individuals to carry guns for individual use around the time of the Civil War. Furthermore, most cases have focused on the right to carry, not possess guns. The Heller interpretation of the Second Amendment has not caused a run for guns and there has been no significant rise in crime.
Chen, J.M. & Grantmore, G. 2003. The phages of American law. UC Davis Law Review, 36:455.
Duggan, M.G. 2000. More guns, more crime. NBER Working Paper No. w7967. Hardy, D.T. 2011. The resent rise, and more recent demise of the “collective right” interpretation of the Second Amendment.
Duggan examined the correlation between gun ownership and crime and found a positive correlation between homicide rates and gun ownership; that is, cities with the largest ratio of gun ownership had the largest incidence of homicide by gun. This makes sense because guns are sued in a significant percentage (70%) of homicides. However, there was no relationship between gun ownership and other forms of crime. The author also analyzed the effect of the new Carrying a Concealed Weapons and found that these new laws had no effect either on the number of gun ownerships or crime rates. That is
Donahue, J.J. 2003. The final bullet in the body of the more guns, less crime hypothesis. Stanford Law and Economics Olin Working Paper No. 260; Stanford Law School.
Donahue conducted a critical examination of the 1997 hypothesis advanced by John Lott and David Mustard, which states that Right-to-Carry laws were associated with reduced crime rates. Policymakers drafting gun laws have relied heavily on their work despite the fact that numerous and more rigorous studies was contradicted their hypothesis throughout the years. However, a recent study by Kovandzic and Marvell uncontroversially refutes their “deterrent effect” hypothesis. In fact, the data shows that the opposite is true, Right-to-Carry laws have been shown to raise, not increase, crime, especially homicide.
Donahue introduces an interesting issue: new technology allows law enforcement officers to detect from a relatively great distance whether a person is carrying a concealed weapon or not which can arguably help make our streets safer. However, in states with strong Right-to-Carry laws, the larger percentage of citizens carrying guns would translate into greater cost to law enforcement as valuable time would be wasted screening out the lawful from the unlawful.
Mialon, H. M. & Wiseman, T. 2004. The impact of gun laws: A model of crime and self-defense. Emory Law and Economics Research Paper No. 05-06.
Citizens who want tighter gun laws believe that guns have a “facilitating effect” on crime because guns tend to end up in the hand of criminals. Citizens who want to loosen gun laws believe that guns have a “deterrent effect” on crime because potential victims might be concealing a weapon. The authors contend that studies support one or the other view are flawed because crime analyses do not differentiate between gun crimes and non-gun crimes nor between guns used during the commission of a crime and guns used for self-defense. Using a model to take these parameters into account the authors analyzed what effect increased penalties for gun crimes would have on crime and found that the law increased non-gun crimes while reducing gun crimes without eliminating the deterrent effect of guns.
Rostron, A.K. 2008. Incrementalism, comprehensive rationality, and the future of gun control. Maryland Law Review, 67(3).
Rostron analyzed gun control laws under policymaking theories of “comprehensive rationality” and “incrementalism” and argues that “incrementalism” acts as a barrier to increased regulation of gun ownership. There is no comprehensive policy that applies to gun legislation. Policymakers have a tendency to draft new gun laws as a result of some event that triggers public demand for a new law concerning gun use and ownership and this has resulted in a fluid mosaic of multiple legislations that at times cross each other and only cover a particular issue. Rostron suggests that policymakers should come together and draft a comprehensive set of gun laws that bring all foreseeable issues concerning gun use and ownership under one umbrella and that considers all stakeholders. This approach would have the dual benefit of clarifying the issue while allaying fears of gun owners that moderate control of gun use and ownership may eventually lead to State confiscation of privately owned arms.
Chen, J.M. & Grantmore, G. 2003. The phages of American law. UC Davis Law Review, 36:455; Available at: http://ssrn.com/abastract=785524
Donahue, J.J. 2003. The final bullet in the body of the more guns, less crime hypothesis. Stanford Law and Economics Olin Working Paper No. 260; Stanford Law School. Available at: http://dx.doi.org/10.2139/ssrn.431220
Duggan, M.G. 2000. More guns, more crime. NBER Working Paper No. w7967. Avaliable at: http://ssrn.com/abastract=245849
Hardy, D.T. 2011. The recent rise, and more recent demise of the “collective right” interpretation of the Second Amendment. Available at: http://dx.doi.org/10.2139/ssrn.1865946
Mialon, H. M. & Wiseman, T. 2004. The impact of gun laws: A model of crime and self-defense. Emory Law and Economics Research Paper No. 05-06. Available at: http://dx.doi.org/10.2139/ssrn.637562
Rostron, A.K. 2008. Incrementalism, comprehensive rationality, and the future of gun control. Maryland Law Review, 67(3). Available at: http://ssrn.com/abastract=1139885
Winkler, A. 2007. Scrutinizing the Second Amendment. Michigan Law Review, 105. Available at: http://ssrn.com/abastract=899181