郭律师的非正常更25：TM演讲3——持枪权

下文是郭律师今天（2017年11月21日）在Toastmaster Club（土司马斯特演讲俱乐部）进行的演讲。这一演讲是基于高阶讲义（advanced manual）《介绍性演讲》（Speech to Inform），第五讲《抽象概念》（The Abstract Concept）。

这次演讲的主要内容是：向美国听众简要介绍联邦宪法第二修正案的前世今生，及其所面临的问题。

Speak to Inform #5: The Abstract Concept

Chuck Guo, CC

The Second Amendment provides that, “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.”

Mister Toastmaster, fellow toastmasters and honorable guest,

The right to keep and bear arms is an eximious and unique guarantee of right that is seldom seen in other countries. In China, around 221 B.C., one of the first measures of the first emperor, Emperor Qin Shi Huang, to maintain order and tyranny in his new empire, was to collect weapons from private citizens, melted them down to forge twelve huge statues, which, I imagine, would look quite different from the Statue of liberty. For more than two thousand years, unified Chinese empires and republics banned weapons held by subjects and private citizens. But the question here is, are Americans proud of the Second Amendment. Please, by show of hands, are you proud of the Second Amendment?

I guess the answer to this question varies from time to time, and depends on the persons to whom were answered this question. The livelihood of a colonial settlor depends on the firearms. In the famous speech, Crime against Kansasin 1856, Senator Charles Sumner said that, “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest.” During the Revolution, King George III had tried “to disarm the inhabitants of most rebellious area. A New York article of April 1769 said that, “it is a natural right which the people have reserved to themselves, confirmed by the English Bill of Rights, to keep arms for their own defense.” As depicted in the 2000 epic historical fiction war film The Patriot, militia formed by able-bodied male is vital to the success of the American Independence. Also, cowboys would be less coolor if they cannot use rifles and revolvers. As a result, the right to keep and bear arms was codified in the Bill of Rights as the Second Amendment in 1791.

With the rapid urbanization, gun violence become a problem. The Congress passed the National Firearm Act in 1934 to regulate registering and transporting certain types of firearms. In United States v. Miller, 59 S.Ct. 816 (1939), the defendants indicted for violating the said Act, appealed to the Supreme Court of the U.S. alleging the National Firearm Act of 1934 violate the Second Amendment. The Supreme Court upheld the Act, reasoning that the firearms regulated are not usually used by Militia. Based on this case, the gun-control theorists developed a theory called the collective right approach, that the right of the people to keep and bear arms can only be protected if it is somehow connected to the service in a militia. Yet the Militia Act of 1903 started the process of federalization of militia, which rendered the right to keep and bear arms at risk. On the contrast, pro-gun theorists opined that the right of the people to keep and bear arms is an individual right independent of services of militia. Holding this theory, the National Rifle Association started to focus on politics and lobbying in 1975.

The Federal and State governments further tightened the regulation of firearms in response to the increasing gun violence. Pro-gun activists challenged these gun bans in courts. This lead to the landmark case District ofColumbia v. Heller, 554 U.S. 570 (2008). District of Columbia passed a handgun ban law in 2001. After the officials denies handgun licenses to the plaintiffs, the plaintiffs pleaded the Federal District Court for District of Columbia for injunction relief and declaratory judgment. The district court dismissed the case, and appeal was taken. The District of Columbus Court of Appeal reversed. The Supreme Court grant certiorari and declare the District of Columbia handgun ban unconstitutional in a 5-4 marginal decision. The late conservative Justice Scalia wrote the majority opinion in an originalism approach. The Court held that the right of the people to keep and bear arms is an individual right, that the District of Columbus handgun ban isunconstitutional, reasoning that the ban of handgun at homes for self-defenseis unacceptable in any level of scrutiny, and that there are some limits to the right to keep and bear arms. However, the court refused to set a level of scrutiny, which could clarify the boundaries of the right.

Heller only answered the question that whether the Second Amendment limits the ability of the Federal Government to regulate firearms. It does not answer the question whether it limits the abilities of the State and Local Governments to regulate. Just two years after Heller, another landmark decision from the Supreme Court, McDonald v. City of Chicago, 561 U.S. 742 (2010), found that the right of an individual to keep and bear arms as protected under the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment against the States. The right of an individual to keep and bear arms is the last fundamental right provided by the Bill of Rights being incorporated by the Due Process Clause of the Fourteenth Amendment. This right is now enforceable against States and local governments.

The right to keep and bear arms is stillan evolving right. Though it is guaranteed by the Second Amendment and Supreme Court precedents, its boundaries and limitations are still unclear. For urban states like California and New York, the limitations on the right are strict. Whereas in rural states like Illinois and Nevada, the limitations are slime. Where is the balance between the right of individual to keep and bear arms and public safety against gun violence? That is the question.

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