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.
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.
D. Juvenile Justice
Juvenile justice consists of a wholly separate criminal law and procedure. In theory, this system of law and institutions, invented by progressive reformers at the turn of the twentieth century, operates 'in the best interest of the child'. In practice, the system no longer reflects the idealism of its founders. Juvenile justice is meted out in juvenile or family court, not the usual criminal court. The goal is not retribution or deterrence, but rehabilitation. The age that makes an offender eligible to be treated as a juvenile varies from below 16 to below 21 depending on the jurisdiction and, within a single jurisdiction, on the type of offense with which the offender is charged. Thus, there are statutes that permit (and in some cases mandate) treating a juvenile as an adult if the offense is a homicide or other serious crime of violence. Generally, the juvenile justice system treats the accused more leniently than the adult system even though the former provides fewer procedural rights.
The juvenile who is arrested is brought to a juvenile detention center, separate from the adult jail and typically administered by a specialized agency of local or county government. In the majority of states, the juvenile has no right to bail. In these jurisdictions, the juvenile's pre-trial status depends solely upon a judge's determination of whether the juvenile should remain in custody pending trial to prevent flight or to protect the community from risk of the juvenile's commission of a future offense.
The juvenile defendant is not charged with a statutory offense, but with being 'delinquent'. However, he is entitled to counsel and to a presumption of innocence. Juveniles have no right to trial by jury, but approximately one quarter of the states have enacted statutes providing for a jury trial option in juvenile cases. If the judge finds the juvenile defendant to be guilty (beyond a reasonable doubt), she may sentence the juvenile to probation or to an indefinite sentence in a juvenile correctional centre or reformatory up to age 21, at which point the juvenile must be released. The juvenile may be released earlier at the discretion of the correctional authorities and subject to conditions which those authorities might impose.
The juvenile justice system has always stirred controversy. Many liberals have argued that juveniles should enjoy the same constitutional rights that apply to adults and have criticized the juvenile justice system for being paternalistic and authoritarian. Conservatives have excoriated the leniency of the juvenile justice system, pointing out that young males under the age of 21 have the highest rates of offending. Despite the criticism, the juvenile justice system survives because there is no agreement on an alternative.
E. Rights of Victims
Historically American criminal law ignored the victim. To the extent that the victim had a role, it was limited to that of an ordinary witness. Indeed, rape victims had less standing than ordinary witnesses since their testimony had to be corroborated. In some jurisdictions, judges cautioned the juries that the rape victim's charges had to be considered skeptically or at least critically because of the propensity of some women to fabricate such charges. In the last two decades there have been major reforms in the law of rape, and these sexist rules have been eliminated. Indeed, many states have passed 'rape shield laws' which prevent the defense, with limited exceptions, from adducing testimony about the rape victim's prior sexual behavior.
Today, an active crime victims' rights movement lobbies for legislation, communicates its views to prosecutors, and monitors court proceedings. Many states have passed laws that permit the victim to make a Victim's impact statement' at the sentencing stage of the proceedings. In some states there are also laws providing that restitution to the victim be the first claim on the convicted offender's funds, even before the criminal fine is paid. Some states give the victim a right to be informed about plea bargaining.
Finally, many jurisdictions have established 'victims services agencies' which provide counselling and material aid, and assist victims through each stage of the criminal justice process. Victims have always had a common law right of action in tort against the person who injured them, but this right has been of little practical use because so many criminals are indigent.
Victim impact statement is a written or verbal statement made as part of the judicial legal process, which allows a victim of crime the opportunity to speak during the sentencing of their attacker or at subsequent parole hearings. In some instances video taped statements are permitted.
One purpose of the statement is to allow the person or persons most directly affected by the crime to address the court during the decision making process. It is seen to personalize the crime and elevate the status of the victim. From the victim's point of view it is regarded as valuable in aiding their emotional recovery from their ordeal. It has also been suggested they may confront an offender with the results of their crime and thus aid rehabilitation.
Another purpose of the statement is to inform a court of the harm suffered by the victim if the court is required to, or has the option of, having regard to the harm suffered by the victim in deciding the sentence.
In cases of crimes resulting in death, the right to speak is extended to family members. In some jurisdictions there are very different rules on how victim impact statements from family members may be regarded. This is because it is seen as unprincipled that different punishments for death are given according to the how much the victim is missed, or conversely that someone's death is relatively less harmful if they have no family. In the circumstance of death, some jurisdictions have described victim impact statements from family members as 'irrelevant' to sentence but not 'unimportant' to the process: they are valued for restorative purposes but cannot differentiate punishment for causing death.
In general terms, the person making the statement is allowed to discuss specifically the direct harm or trauma they have suffered and problems that have resulted from the crime such as loss of income. Some jurisdictions allow for attaching medical and psychiatric reports that demonstrate harm to the victim. They can also discuss the impact the crime has had on their ambitions or plans for the future, and how this also impacted their extended family.
Some jurisdictions permit statements to express what they deem to be an appropriate punishment or sentence for the criminal.
Some jurisdictions expressly forbid any proposal or suggestion on punishment or sentencing. Among other reasons, this is because the sentencing process is solely the domain of the judge who consider many more factors than harm to victims. Allowing suggestions on punishment or sentence can create a false hope of the eventual sentence and undermine the notion of restorative justice.
http://en.wikipedia.org/wiki/Victim_impact_statement
http://www.letswrap.com/legal/impact.htm