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Buffalo Law Review

First Page

961

Document Type

Article

Abstract

Few issues are as divisive as guns in American society. In 2017, gun deaths in the United States reached their highest level in nearly forty years. The status quo is untenable as many gun rights groups feel that gun regulations are just a first step in a slippery slope of undermining the Second Amendment’s right to bear arms for self-defense. Conversely, many gun violence prevention activists insist that reasonable regulations concerning public safety can co-exist with the right to bear arms. This quagmire will never abate because on many levels both sides are right. For over 200 years, the courts interpreted the Second Amendment as protecting a right to bear arms for the state militias, called a “collective” right, and not an individual right to bear arms. In 2008, however, the Supreme Court in a 5-4 ruling held for the first time that, based on the Founding Fathers’ intent—an approach called originalism—the Second Amendment protects the individual right to self-defense in one’s home. This was the right decision, but for the wrong reasons. The Second Amendment’s language is ambiguous at best, and at worst, favors the militia interpretation that had prevailed for over 200 years. Moreover, the Founding Fathers’ intent is as irrelevant as it is indeterminable. An interpretation of the Constitution as a living document that evolves with the values of this country leads to one unmistakable conclusion: individuals should be allowed to use guns for self-defense while the government should be allowed to enact reasonable public safety regulations.

Since the founding of this country, the use of firearms for self-defense has played an integral part in American culture. Yet, so have reasonable gun regulations. This Article will explore three time periods in America’s history where either the states, or the federal government enacted reasonable gun regulations to address serious problems plaguing the nation because of guns: violence in the Wild West, gangsters in the 1920’s, and urban violence in the 1960’s. These regulations were enacted in time periods where the conversation was not so divisive and toxic.

To move forward, we need to look backwards. A study of American history reveals a fundamental truth: the use of firearms for self-defense both inside and outside the home can be coupled with reasonable gun regulations to address public safety. Therefore, the Second Amendment should be amended to explicitly state, “Every person has the right to keep and bear arms, subject to reasonable regulations for public safety.” In this way, gun rights groups will not have to feel that every gun regulation is on a slippery slope to banishment of guns while gun violence prevention advocates can feel confident that the conversation will always involve “reasonable” regulations that can evolve with the times. After all, gun rights and reasonable regulation is what this country has been doing for over 200 years, until the present impasse. We often study history so we don’t repeat it, but sometimes we need to study history to remind ourselves that the past is worth repeating.

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