In the United States, the grim spectacle of gun violence continues unabated. Moreover, extreme cases involving ‘mass shootings’ occur four or five times a year or more. A desensitized population doesn’t demand the change required, and our congressional leadership sees this as an excuse for political inaction. This scourge of our time is a divisive subject for American society. It’s been on my radar for quite a while, though now at the forefront once more, after the latest bout of killing at the ‘Emanuel AME Church’, on Calhoun Street in Charleston, South Carolina. Please excuse my need to comment on ‘gun control’ in this July edition of my blog but I hope you will share some of my sentiments.
No one who is serious about the conversation doubts that this problem needs a comprehensive solution. The comparisons between the United States and other civilized nations on gun related deaths are a complete embarrassment. Society in the United States doesn’t realize this disparity – the sheer mathematics of it. I apologize in advance for the ‘number-heavy’ statistics that follow in this blog, but there is no other way to prove my point. On average – over 30,000 people a year are killed in all gun related deaths. That’s 10 times more than perished at Pearl Harbor or in the 9/11 attacks. It seems that Americans are killing themselves at a rate of over 80 a day. Of the 30,000 about 9,000 are directly the result of murder, the rest attributable to accidents or suicide. These numbers are not surprising when one considers that there are over 310 million firearms in circulation in the United States, which does not include weapons owned by the military. In related incidents some comedians have joked about another crazy statistic. In 2011, 85 bullets were fired in trackable ammunition by the entire police force in Germany. In that same year, in the United States, in one incident a single police officer shot 90 bullets into the chest of a single man. In other comparable instances police have fired over 120 rounds at someone who was not firing back. They admit that they were confused by the echo of their own gunshots. In another case of firing 110 rounds at a single man a Polk County Sheriff later said “That’s all the bullets we had.” There is no doubt that the conversation should be about proper regulation of arms and ammunition, whether it’s about the availability of weaponry for citizens who lack the mental capability or responsibility, or the culture of fear in what has tragically become normal urban warfare. A war that rages on between different factions and between the police and those they ‘serve and protect’ – that impels people to fire upon each other – in a rain of ammunition – as the first and only resort.
But before we control the guns, it’s interesting to look at the legal framework that supports them. I used to be a committed critic of the Second Amendment, – from which our right to ‘keep and bear arms’ emanates. However, I’m rethinking some of my initial prejudice as a result of listening to constitutional scholar Akhil Reed Amar. It’s worth recounting some of the pros and cons and, by the way, if you can find anything authored by Professor Amar, it will be worth your time to read it.
THE SECOND AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
“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.”
(The First Ten Amendments to the United States Constitution – collectively known as the Bill of Rights – is pictured above, ratified by the states in 1791. The current Second Amendment appears as the Fourth Amendment of an original Twelve – which is decipherable from the photograph above. All the images in this July edition of my blog are sourced from US Government websites serving the Supreme Court, the National Archives and the Bureau of Alcohol, Tobacco and Firearms.)
I always believed that support for the Second Amendment was misplaced, since the ‘well-regulated militia’ necessary for the amendment to have any relevance had become the most powerful volunteer army in the history of the world. It certainly does not rely on the colonial homesteader to bring his single shot musket with him if called up for the ‘security of a Free State’. George Washington and his administration had known how expensive it was to provide armament in a conflict and relying on each citizen to ‘Bring Your Own Gun’ seemed eminently sensible. I can’t understand why strict originalists or textualists in the judiciary just ‘lop off’ everything before the comma and just read the amendment text in a way that discounts its whole intent. The right of the people to keep and bear arms was conditional on service in the defense and security of the state. Anyone who had read the language could see that. This precedent was well established and generally uncontroversial both in and out of legal circles. Then started the misreading and misuse of this text to guarantee rights and privileges that were never intended by the framers. Several well positioned, well written gun control statutes were toppled in this millennium starting in 2004 with the willful expiration of the Assault Weapons Ban – signed into law along with the Brady Bill in 1996. It was bad enough that politicians couldn’t do the right thing. Unfortunately, the Supreme Court followed suit, sustaining the stupidity of Congress instead of overruling it.
Two landmark cases – that reached the Supreme Court of the United States – took American jurisprudence in a very different direction, turning on its head the established precedent of 200 years. They were the 2008 case District of Columbia vs. Heller and the 2010 case McDonald vs. City of Chicago. Both cases struck down city laws (Heller applying to Federal territory and McDonald extending the same principle and precedent to all individual States) that proscribed the possession of handguns at home. In Heller an off-duty police officer claimed that he had a right to keep his weapon unlocked and ready for discharge at home for purposes of self-defense. The court overturned portions of the ‘Firearms Control Regulations Act of 1975’ which regulated that all firearms, including rifles and shotguns, be kept “unloaded and disassembled or bound by a trigger lock”. The Supreme Court’s judicial authorization to override city statutes, in both cases, apparently lay in the new and modern reading of the Second Amendment. A new reading that fashioned a new right out of new subtext – for all persons to own or carry a gun for purposes of self-defense – even if local laws banned the practice.
Justice Stevens (ret.) in his dissent in District of Columbia vs. Heller wrote:
“When each word in the text is given full effect the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.”
Justice Scalia, who wrote the opinion of the court in Heller, characteristically called upon historical roots and what may or may not have been intended in 1688 English law. Eloquent but, in my view, irrelevant observations followed:
“…this right, originally belonging to our forefathers, trampled underfoot by Charles I and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists and finally incorporated conspicuously in our own Magna Charta…”
It is worth pointing out, as Justice Breyer does in his dissent, that there were a multitude of gun regulations in the early colonial days. Boston’s statute of 1747 – revived in 1778 – made it a finable offence to fire a shot and ball within the city limits. New York City banned the firing of guns, even privately at home, for three days around New Year’s Day celebrations. There was great emphasis in many widely enforced laws on keeping stores of gunpowder separate from the actual fire arm, very often on the top floor of the building, so much so that the ‘self-defense’ interpretation of recent years would not have been possible under many of these old statutes.
For more than 200 years the court had held that the right to regulate firearms existed, and in 1939 in United States vs. Miller a unanimous Supreme Court declared the right to regulate (ban) a sawn-off shot gun. Since then, however, the right to keep and bear arms has slowly been expanded to include the most dangerous weapons, which by their very nature are likely to be used for unlawful purpose. The culprit in this sea change in common sense is the National Rifle Association that leads the nation’s powerful and pervasive gun lobby. The NRA was founded in 1871 as a great and well respected rifle enthusiasts club made up of captains, majors and junior officers of the Union army, supporting and advocating the homestead self-defense of countless freed slaves, and envisaging what was best in Abraham Lincoln’s great new world. The NRA long since has been hijacked and its message distorted to bring shame on its origins and the political party that gave birth to it. Voters sometimes have an allegiance to a name – and don’t realize that the ground has shifted from under them, espousing ideologies that would once have been abhorrent.
Justice Stevens still writing strong on this subject, noted that ‘Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,”[Chief Justice Warren] Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” This condemnation of the NRA’s tactics went largely unheeded.
Well, it’s still true, that the Second Amendment has been interpreted out of context – but Professor Amar points to other reasons to keep its language intact and to celebrate its virtues. The idea that the militia, either our police force or the armed forces should be well regulated, is of vital importance. The idea that the right to keep and bear arms belongs with the citizenry implies the people’s control over that militia, which is of unfathomable importance. So I fully concede that the second amendment should not be dismantled, just because some jurists have misread its intent. The reach of its true meaning might ironically keep us safer. There is much in the US Constitution that allows for Justice to be well seated and for her to be consistent from age to age.
Well, what about the recreational use of firearms? What about hunting? I’ve never understood hunting, myself, but I have hunted and at least understand the premise of fair game. Friends of mine – especially in England – who are avid hunters have talked about the conditions of stalking deer, where one might crawl on one’s belly for two days, only to be told by a vigilant game keeper that you had to stand down because the target was a doe and the timing made it an unsuitable kill. Fair game indeed. Also, the weapon was a simple shot gun, which took training, skill and licensing to operate so that the animal could be given a clean kill. Avid gun owners who enjoy the hunt as it should be, are willing to abide by all these regulations and insist on maintaining them– in a traditional culture where firing the gun is less important than the pastime of hunting.
Not so in some cases, in the United States, where trapped defenseless tiny creatures –with clipped wings so that they cannot fly – are cornered in the netting of a small compound and then fired upon with grapeshot because the joy of the hunt apparently comes from discharging the weapon under every circumstance and not from any skill, training, tradition or decency. The responsibility of gun ownership on the hunt has become the mere transference of the inanimate moving targets of the fairground to live defenseless creatures with no hope of ‘fair game’. Perhaps this usage should change.
This is not to say that many hunters in the United States don’t follow the highest protocols of fair game. But those hunters – responsible, skilled and trained as they are, like their civilized counterparts, don’t have any problems with regulation. Most are not threatened by it, and usually welcome it. They are the one group of society who are mortified at every incident of gun violence because they are lumped in with the conversation as if they don’t know the difference and as if their proclivities are the same as those of rampaging killers and complete idiots whose magazine clips contain a number higher than their IQ quotient. Perhaps we would see the necessary change if these fine citizens spoke out convincingly about feasible and reasonable regulation.
This brings into sharp focus the incessant shouting about gun rights from all those who would misuse them. There is no need at all for assault weapons in an urban environment. The keeping of guns for lawful purpose perhaps should not extend to those who stockpile a cache of weapons under their bed, collecting multiple military grade modern assault weapons as if they were baseball cards, whilst children walk about at home. It is certain that the founding fathers did not mean to extend this as a basic right, much less through their carefully crafted, now ignored, language of the Second Amendment.
I agree – without reserve – that free citizens should be allowed to own a firearm if they so wish. The Constitution implies an inherent power in the hands of the people and spends many of the 27 amendments that follow, curbing the power of the government. However, if one is prepared to use a gun, under any circumstances, the results are usually irreparable and final. Sensible, meaningful, effective and enforceable regulation is a prerogative of gun ownership in civil society. A law abiding citizen won’t be the one complaining about the ‘right to own’ or the ‘right to use’. It will be the citizen who, for whatever reason cannot – and therefore probably should not – pass muster.
The shouting comes at fevered pitch if the right to bear arms is seen as a freedom. Everyone has the freedom and the right to own and drive a car – and no one would think that any rights have been usurped. Drivers must comply with licensing, insurance, personal proficiency, regular driving tests, an entire rulebook of road safety and the threat of losing the right if they are in default. A car – under certain provisions is legally considered a lethal weapon of manslaughter and sensible regulations apply to prevent misuse. Yet it seems, a gun – an actual lethal weapon – cannot be equally regulated.
Here’s the real comparison. In the United States –as previously mentioned – there are now more than 310 million guns in circulation. There are 253 million cars and trucks on the road. The cars and trucks are in plain view in congested, confrontational conditions that are conducive to human error, accidents and resulting fatalities. It’s an unavoidable part of travel and commerce for a nation as large as the United States. The guns are not in plain view and often used in moments of subterfuge or illegality. The projected numbers for 2015 show that the deaths per year from car accidents (approx. 30,000) are now lower than those from gun related incidents (approx. 33,000). What can this possibly mean? The United States has 88 guns per hundred persons, leading all the world’s nations in that preposterous statistic. Serbia comes in 2nd with 69 and Yemen in 3rd place dropping to 54. Most European nations are between 29-31 guns per hundred persons. The United Kingdom – however – is at 6 guns per hundred persons. Quoting statistics from a fine article by Juan Cole the firearm related murder rate in the US in 2012 was 8,855. In England and Wales for the same year it was 30. Accounting for a difference in population the civilized number in the US should have been 164. The numbers here are indisputably connected to the widespread, unregulated availability of guns. Overwhelming statistics show that people lose their gumption to commit murder if they have to engage in it without a gun – ‘up close and personal’.
This month, in 3 days around the July 4th weekend, the City of Chicago suffered 10 deaths with 55 wounded. Last year it was 16 dead with 82 wounded. I wonder what life – literally – in Chicago would be like if the court’s opinion in Mcdonald had been different. If anyone thinks that laws and regulations don’t have a real effect on the statistics, the gun bills passed in the mid 1990’s dropped the gun related death rate from c. 37,000 to c. 28,000. These numbers are slowly climbing back up as laws are relaxed, repealed or replaced by the misdirected fanaticism of deregulation. Though none of these appalling statistics support us, we Americans are not all psychotic, homicidal maniacs. But certainly, I think we are far less developed than we think we are – when compared with our first world counterparts – who have lasting and necessary solutions in place without the cloudy shadows of false politics.
There is a ‘silver lining’ in the courts decision in Heller which would be unfair to discount. The 1939 case of United States vs. Miller was not overturned. Gun regulation is absolutely permissible under the law, even as it stands today. In the safeguarding of weapons in the home for the use of legitimate self-defense, Justice Stevens explains that the court went out of its way to make sure that “prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.” However, very little of it stands in actual enforceable law and every year those existing laws get stripped, pulling the necessary teeth from their bite.
Since Heller a number of states have been encouraged to adopt laws that allow a mad regression to failure. Some states allow students to carry guns, others allow the carrying of guns in all the previously identified sensitive places, including daycare, churches, schools and hospitals, sometimes making it illegal to question or ban the practice. Some laws make it easier for violent felons to regain possession of their firearms. In some states you don’t have to be a certain age, or even sober to retain your right to use a firearm. The “Stand your Ground” law, – or in my estimation the “Shoot first, unhinged and without justification, and the State will still support you” law – has already caused illegitimate carnage in some places. Just this month the State of Indiana legalized the ownership of sawn-off shot guns – as if that was the main thing missing in the lives of Hoosiers that they could not do without. A local police chief remarked that since “people who acquire and use guns illegally do not particularly care what the law is”, he had no specific concerns. This sort of sophistry and self-winding tautology has the fingerprints of the NRA all over it.
There is nothing preventing Congress from taking up serious new measures, or to at least reinstate the common sense measures of the past that have been deliberately stripped. Apathy, political cowardice or benefiting from some slush fund is intolerable at any time, but inexcusable when lives are lost. It’s time to move beyond wild politicians, some of whom keep suggesting that all the gun violence could be avoided if only everyone was armed to the teeth and able to respond by shooting down whomever they considered to be dangerous. One can have the childhood dream of being a gunslinger from the Old Wild West, or one can be a statesman. It is inherently dangerous to combine the two and to be let loose in the legislature.
Sensible solutions need sensible people. It would be very gratifying to see either prevail.