Is it right to bear arms?
By Stephen Higham, Solicitor
Last Tuesday three people died at the hands of 22 year old Jacob Tyler Roberts in a shopping mall in Portland, Oregon, USA. Roberts, wearing a hockey face mask and using a stolen assault rifle, killed himself after the attack.
Three days later 28 people were killed by 20 year old Adam Lanza in the affluent suburban town of Newtown, Connecticut. Among the dead were 20 children from Sandy Hook Elementary School aged between 5 and 10, including 6 year-old Dylan Hockley whose family had immigrated to the US from Eastleigh, Hampshire in 2011. Lanza dressed in combat fatigues and took his mother’s guns, using them to kill her, before forcing his way into the school and opening fire with a semi-automatic rifle. He also killed himself.
Gun Laws Relaxed
Less than 60 hours after the Portland attack, and a mere 12 hours before the Newtown one, the State of Michigan’s Republican party- controlled legislature enacted Senate Bill 59, allowing citizens to carry concealed weapons to such previously restricted places as day care centres, schools, hospitals, churches, stadiums and bars. Although owners of these premises can post signs stating that they will refuse entry, the presumption is that concealed weapons will now be permitted on-site. The Bill has been handed to Republican Governor Rick Snyder for approval, who described its passage (among a raft of bills enacted that day) as promoting a ‘safer, healthier and more prosperous future for all residents’.
From the outside, Michigan’s relaxation of concealed weapons laws seems anachronistic, especially given the timing. However, a closer examination of the law and the culture of the country suggests otherwise.
Americans place great faith in their written Constitution, and, in this context, the Second Amendment. This was enacted in the 1791 Bill of Rights and 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.’
As with so much in the New World, the American Bill of Rights has its roots in England. The English Bill of Rights of 1689 confirmed that citizens could not be disarmed without the consent of Parliament. There is some argument about whether the Bill merely codified a natural right (being inalienable and universal so not contingent upon laws) or whether it provided a new legal right. Either way, the American Bill’s Framers considered it essential to preserve the young country’s citizens’ rights.
Supreme Court Rulings
It took over 200 years to test the definition of the right to bear arms. In 2008 the Supreme Court decided District of Columbia-v-Heller, which determined that service in a militia was not necessary to permit an individual’s right to possess a firearm. Applying to federal enclaves only (of which the District of Columbia is one), it was affirmed in 2010 with respect to the states in McDonald-v-Chicago.
Both decisions stressed that the right to bear arms is not unlimited so that restrictions including those to “prohibit…the possession of firearms by felons or mentally ill” and “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” can still be made at State or Federal level.
This freedom of the States is again enshrined in the Bill of Rights (the tenth amendment). It asserts that:
‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’
Consequently, while the Michigan legislatures’ decision to allow concealed weapons on school premises may seem odd given the Supreme Court’s position in Heller and McDonald, where it specifically referred to schools as ‘sensitive places’ where firearms could be forbidden, it is entirely consistent with the Bill of Rights.
So Americans right to bear arms is enshrined in federal law and, in states such as Michigan, extended with state laws. A more pertinent question would be ‘why do they want them?’
The United States is a country of 315 million people. It is estimated that there are 270 million guns in the country. This puts gun ownership at the world’s highest levels per capita. Yemen comes a distant second. Many gun owners own multiple weapons, so the household numbers are significantly lower. Even so, it is not unusual to own a gun, especially in the rural areas which make up so much of the country where hunting and pest control is a part of life.
Belief in the Constitution (which as anyone who has ever watched protests when the Supreme Court is interpreting it will know) borders on the religious and mandates gun ownership in a way that does not occur in the UK.
The Second Amendment is routinely referenced by politicians and special interest groups such as the powerful National Rifle Association (‘NRA’). The NRA is vehemently opposed to gun control and considered by members of Congress to be the most powerful lobbying organisation in the country. Representative Jan Schakowsky recently complained that ‘as soon as they introduce anything you get some 300 members of Congress, without even reading the bill voting in favour of the NRA position.’
Rhetoric and publicity also play their part. During his time as president of the 4.3 million strong NRA, the Hollywood movie actor Charlton Heston made a catchphrase of holding up his gun and shouting ‘from my cold dead hands’. Popular magazines such as ‘Guns and Ammo’ are sold in convenience stores alongside Sudoku and lifestyle magazines.
Guns are freely available in supermarkets. Gun shows, where regulations on purchasing guns are relaxed, are routine events. Courses on using your weapon are promoted on Google offers alongside adverts for headphones and weekend getaways. Special offers on guns are promoted in flyers attached to the Sunday papers.
But perhaps the most important factor is the deeply ingrained belief that the individual is responsible for themselves. In the context of gun ownership, this means that in the event you are subject to an attack, you can protect yourself and those around you rather than hope that law enforcement officials arrive on the scene to deal with the attacker.
Speaking after Bill 59 passed in Michigan, Steve Dulan of The Michigan Coalition for Responsible Gun Owners was quoted in the Detroit Free Press as saying, “We were fully behind it because what happens when you disarm law abiding people is there is nobody to stop the crazy people.”
There is some support for Mr. Dulan’s position (and that of Dick Heller, who took the 2008 case to the Supreme Court) when keeping guns at home for protection from invasion.
According to this article in The Atlantic Gary Kleck, an academic at Florida State University, stated in 1991 that only 13% of burglaries in the USA occurred when the occupant was home. Compare this to the UK, where Kleck found that 45% of burglaries occurred in similar circumstances.
Moreover, a survey of 2000 convicted US felons in the 1980s concluded that burglars were more afraid of armed occupants than arrest by the police.
So, although the popular view of gun ownership to ensure self-preservation can be supported by selective statistics, it is just as easy to posit a contrary stance.
In 2010 in the USA, 9 people were killed due to firearms for every 100,000. By contrast in the UK, in 2011 0.25 people were killed per 100,000. The fact is Americans are 36 times more likely to die due to a firearm discharge than Britons.
And what Mr. Dulan and colleagues do not address is what happens in a Newtown situation where more guns are used in a confined area.
After the Legislature passed Bill 59 in Michigan, Genesee County Prosecutor David Leyton asked readers of the Free Press ‘Who in their right mind needs to carry a gun in a school, day care center or stadium?’ Adding, ‘It doesn’t make sense to me and many of us believe in the right to bear arms.’
As ever, the political desire for change has to be there. President Obama said after Newtown on Friday that:
‘We’ve endured too many of these tragedies in the past few years… As a country, we have been through this too many times.
He followed up by saying, ‘We’re going to have to come together and take meaningful action to prevent more tragedies like this, regardless of the politics.’
So will things change this time? Will gun control be part of the legislative agenda? Will this have the effect of reducing gun ownership? President Obama may be emboldened by a second term in office but given the deeply ingrained belief in the Constitution backed by Supreme Court decisions, Republican- dominated state legislatures like Michigan, the strength of lobbying groups like the NRA, and the belief in self- preservation through gun ownership, I will not be holding my breath.