미국 연방헌법 수정조항 제2조 -무기소지권에 대한 논쟁과 자기방어의 기본권-
The Second Amendment to the U. S. Constitution: Arguments for Gun Control and the Ideology of Self-Defense
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No Constitution is as frequently invoked and misunderstood as the Second Amendment. Political arguments for gun control, mostly debates on the right to bear arms, center on the Second Amendment. The original intention of the Founding Fathers and the concurrent interpretation of the Amendment remain inconclusive. By tracing scholarly works on the history and politics of Second Amendment, the past decisions of Supreme Court, and the intellectual and political climate of the late eighteenth century in America, this article is to discuss whether the Second Amendment protects individual's right to arm or preserves states' right to maintain a militia. This will bring deeper insight to the main ideology of the Second Amendment. Natural law philosophers perceived self-defense as an inherent right, which brought forth a variety of other rights, the "right to arm" being the primary importance. Greatly influenced by John Locke and Blackstone, the Founding Fathers saw the individual's right to arm equivalent to the right to self-defense. In absence of law enforcement, Americans bore arms to protect self and their community. This brought young men to posse comitatus and formation of militia, subduing criminals and establishing law and order. Thus long before the Second Amendment was introduced, the right to arm already preexisted in American common law. A wide range of views exists regarding the Second Amendment, but most scholars come to agreement that it preserves and guarantees the pre-existing individual's right to arm. This view was echoed by the Founding Fathers who believed possession of arms is crucial to self-defense and to prevent a tyranny from overpowering the people. This view was also confirmed by the Supreme Court decision in District of Columbia v. Heller in 2008, which claimed “gun ownership is a constitutional right.”
Abstract
No Constitution is as frequently invoked and misunderstood as the Second Amendment. Political arguments for gun control, mostly debates on the right to bear arms, center on the Second Amendment. The original intention of the Founding Fathers and the concurrent interpretation of the Amendment remain inconclusive. By tracing scholarly works on the history and politics of Second Amendment, the past decisions of Supreme Court, and the intellectual and political climate of the late eighteenth century in America, this article is to discuss whether the Second Amendment protects individual's right to arm or preserves states' right to maintain a militia. This will bring deeper insight to the main ideology of the Second Amendment. Natural law philosophers perceived self-defense as an inherent right, which brought forth a variety of other rights, the "right to arm" being the primary importance. Greatly influenced by John Locke and Blackstone, the Founding Fathers saw the individual's right to arm equivalent to the right to self-defense. In absence of law enforcement, Americans bore arms to protect self and their community. This brought young men to posse comitatus and formation of militia, subduing criminals and establishing law and order. Thus long before the Second Amendment was introduced, the right to arm already preexisted in American common law. A wide range of views exists regarding the Second Amendment, but most scholars come to agreement that it preserves and guarantees the pre-existing individual's right to arm. This view was echoed by the Founding Fathers who believed possession of arms is crucial to self-defense and to prevent a tyranny from overpowering the people. This view was also confirmed by the Supreme Court decision in District of Columbia v. Heller in 2008, which claimed “gun ownership is a constitutional right.”
참고문헌 (47)
- 마틴 길버트, "크리스탈나흐트" (2009), 플래닛
- 안경환, "미국 연방헌법 수정 제2조(무기소지권)의 의미", 서울대학교법학, 105, pp.129~149 (1997), 서울대 법학연구소
- 양승업, "미국헌법 제2조와 수정헌법 제12조의 차이점에 관한 고찰", 강원법학, 23, pp.185~213 (2006), 강원대 법학연구소
- 최승원, "미연방헌법 수정 제2조와 총기규제", 미국헌법연구, 7, pp.217~242 (1996), 미국헌법학회
- 한국미국사학회, "사료로 읽는 미국사" (2006), 궁리출판
- "조선일보" (2008)[URL]
- Amar, Akhil R, "The Bill of Rights As a Constitution", Yale Law Journal, 100, pp.1131~1162 (1991)
- "Policy # 47: Gun Control"[URL]
- Barlow, Joel, "Advice to the Privileged Orders in the Several States of Europe: Resulting From the Necessity and Propriety of a General Revolution in the Principle of Government, Part I" (1956), Cornell University Press
- Beccaria, Cesare, "An Essay on Crimes and Punishments" (1963), Bobbs-Merrill
- Bennett, Randy E, "Under Fire: The New Consensus on the Second Amendment", Emory Law Journal, 45, pp.1139~1259 (1996)
- Blackstone, William, "Commentaries on the Laws of England" (1803)
- Boorstine, Daniel J, "The Americans: The Colonial Experience" (1964), Vintage
- Boyd, Julian P, "The Papers of Thomas Jefferson 8" (1953), Princeton University Press
- Butterfield, Lyman H, "Legal Papers of John Adams, III" (1968), Macmillan
- Carson, Clarence, "Basic American Government" (1993), Blackstone Audio
- Conway, Moncure, "The Writings of Thomas Paine I, III" (1967), Putnam's Sons
- Cornell, Saul, "A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America" (2006), Oxford University Press
- Cottrell, Robert, "Gun Control and the Constitution" (1994), Garland Publishing
- Dickerson, Oliver, "Boston Under Military Rule" (1936), Chapman and Grimes
- "District of Columbia v. Heller, 554 United Stated Reports 570", ~ (2008)
- Halbrook, Stephen P, "That Every Man Be Armed: The Evolution of a Constitutional Right" (1984), University of New Mexico Press
- Hays, Stuart R, "The Right to Bear Arms, A Study in Judicial Misinterpretation", William and Mary Law Review, 2, pp.386~406 (1960)
- Hickok, Eugene W., "The Bill of Rights: Original Understanding and Current Meaning" (1991), University Press of Virginia
- Kates, Don B., "Handgun Prohibition and the Original Meaning of the Second Amendment", Michigan Law Review, 82, pp.204~212 (1983)
- Kates, Don B., "The Second Amendment and the Ideology of Self-Protection", Constitutional Commentary, 9, pp.87~104 (1992)
- Kates, Don B., "Restricting Handguns: The Liberal Skeptics Speak Out" (1979), North River Press
- LaPierre, Wayne R., "Guns, Crime, and Freedom" (1994), Regnery Publishing
- Levinson, Sanford, "The Embracing Second Amendment", Yale Law Journal, 99, pp.637~659 (1989)
- Levy, Leonard W., "Encyclopedia of the American Constitution" (1990), Macmillan
- Locke, John, "An Essay Concerning the True Original, Extent and End of Civil Government, In Two Treatise of Government" (1947), Haffner Publishing
- Ludwig. Jens, "Evaluation Gun Policy: Effects on Crime and Violence" (2003), Brookings Institution Press
- Madison, James, "The Federalist Papers 46" (1966), Arlington House
- Montesquieu, "The Spirit of the Laws, In Great Books of the Western World 35" (1990), Encyclopedia Britannica
- Norman, A. V. B., "The Medieval Soldier" (1971), Thomas Y. Crowell
- "Presser v. Illinois, 116 United States Reports 252", ~ (1886)
- Reynolds, Glenn Harlan, "A Critical Guide to the Second Amendment", Tennessee Law Review, 62, pp.461~488 (1995)
- Shalhope, Robert E, "The Ideological Origins of the Second Amendment", Journal of American History, 69, pp.599~614 (1982)
- Spitzer, Robert J., "The Right to Bear Arms: Rights and Liberties under the Law" (2001), ABC-CLIO
- Tribe, Laurence H, "American Constitution Law" (2000), Foundation Press
- Tuchman, Barbara W, "The March of Folly" (1984), Alfred A. Knopf
- U.S v. Cruikshank, , Government Printing Office, ~, pp.92 United States Reports 542 (1875)
- "U.S v. Miller, 307 United States Reports 174", ~ (1939)
- "Washington Post", ~ (1972)
- Webb, R. K., "Modern England: From the Eighteenth Century to the Present" (1970), Dodd, Mead
- Weighley, Russell F, "History of the United States Army" (1967), Macmillan
- Williams, David C, "Civic Republicanism and the Citizen Mitilia: The Terrifying Second Amendment", Yale Law Journal, 101, pp.551~615 (1991)