“The focus of legal debate has changed over time”
American ideas of the right to bear arms, incorporated into the US Constitution and debated ever since, originated, in great part, from traditions of English law. The Second Amendment of the US Constitution, asserting the right of Americans to be armed, is a legacy of the right of Englishmen to “have arms for their defence”. That English right, enshrined in the English Bill of Rights of 1689, however, was limited to “the Subjects which are Protestants” – at that time, some 90 per cent of the population – and to those weapons “suitable to their Condition and as allowed by Law”. Despite these qualifiers, the English right to keep and carry firearms was virtually unrestrained until the Firearms Act of 1920.
The US Second Amendment, by contrast, has no religious, class or legislative limitation. It refers to the need for a citizen militia as one reason for the right, then declares: “The right of the people to keep and bear Arms, shall not be infringed.” This unqualified guarantee is entrenched in the nation’s constitution. In two recent landmark decisions, the US Supreme Court has affirmed that the amendment protects an individual’s right to own guns for self-defence.
However, the focus of legal debate has changed over time. We now tend to underplay the dual purpose of the right of individuals to be armed – self-defence and defence against a tyrannical government – stressing only self-defence. The great English jurist William Blackstone, writing in the late 18th century, described the right as “a publick allowance under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression”.
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Modern governments are, of course, hostile to the idea of an armed public ready to resist, and most people believe a public with standard firearms would be useless against a well-equipped army. Nevertheless there are many examples of governments disarming their citizens in order to repress them, and of armed citizens putting up stiff resistance. As Alex Kozinski, an American federal judge, points out: “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”
Today’s public and political debate about gun control focuses on the question of individual acts of violence, whereas in the past there was more emphasis on anxiety about groups possessing weapons. In the early 20th century, state legislation focused on keeping firearms out of the hands of African-Americans in the south, and the waves of immigrants from eastern and southern Europe entering the country in the north.
In the past few years, though, with a national murder rate that has been declining for more than two decades, the focus has been on keeping guns out of the hands of individuals likely to commit mass murders. The majority of American states – some 43 to date – have become far more permissive about licensing law-abiding citizens to carry concealed firearms for their own protection and in the event of such an attack.
Joyce Lee Malcolm is Patrick Henry professor of constitutional law and the Second Amendment at George Mason University, Virginia
“The politics of gun control have become complex and politically toxic”
In most cases, debates about gun control in the US have followed periods of violence. Prohibition and the 1929 St Valentine’s Day Massacre, in particular, led to the first serious attempt by Congress to regulate firearms: the 1934 National Firearms Act, taxing and regulating ownership of certain weapons. The assassinations of John F Kennedy, Robert Kennedy and Martin Luther King led to the Gun Control Act of 1968, and the peak of urban violence in American cities in the 1980s provided the backdrop to the 1993 Brady Handgun Violence Protection Act and the 1994 Federal Assault Weapons Ban. Major debates also occurred after the 1999 school shooting in Columbine, and shootings in Virginia Tech in 2007, Fort Hood in 2009, and Aurora and Sandy Hook in 2012.
However, debate has not led to action. This is, in large part, a result of the fact that the politics of gun control have become so tangled, complex and politically toxic that it is now impossible to obtain the consensus needed to pass legislation. It’s also important to remember that gun control is a state issue as well as a federal issue. Lack of action at federal level does not mean inaction at state level, as the current patchwork of US state laws relating to guns testifies.
The gun rights versus gun control debate in the US touches on a wide range of cultural and political issues that go much deeper than the question of access to firearms. The popular view of the American Revolution holds that the colonists fought the British for liberty and freedom, and against tyranny. The US Constitution and Bill of Rights were designed to reinforce these goals. The link to the nation’s founding is important because it implies that any attack on the principles established by the revolution is an attack on the US itself, meaning that gun control supporters have to defend themselves against charges of anti-Americanism before they can even get to their core arguments. In many ways, the debate about guns is a debate about the very meaning of the US.
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For many Americans the question is also one of freedom from government control. The Constitution embodies the idea that government should be small and limited. That was a reasonable description of the federal government for most of the 20th century until the exigencies of the New Deal and Second World War saw power flow to the centre, where it stayed as a result of the Cold War. For those who believe that the government is too big, interference in gun ownership is simply more evidence of an overarching authority intruding on the power of the ordinary citizen.
Gun rights supporters argue that, since statistics do not prove that gun control reduces gun crime (an argument refuted by gun control advocates), the government does not have enough reason to intrude on the constitutionally protected rights of law-abiding American citizens. In opposition, gun control supporters argue that the Constitution also embodies the government’s duty to ensure the safety of its citizens. Thus the debate about guns is also a debate about the role of government in American life.