Is it right to bear arms?

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.

American History
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.

States Rights
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.

Principles
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.”

Statistics
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.’

Change
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.

5 thoughts on “Is it right to bear arms?

  1. The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants: Thomas Jefferson. Hang & shoot is what America is all about! Islam ate Besantium and reds ate czars because they didn’t execute anyone. Now Putin don’t like us giving assault rifles to Syrian freedom fighters. Better bloodshed than slavery!

  2. The American gun lobby or the NRA like to say that “Guns don’t kill people, but people kill people”. There is some truth in this. Save one exception, guns do not go off on their own killing someone. The exception was a hunter, shot by his dog which knocked over his master’s rifle as it was leaning against a tree killing him stone dead.

    Someone pointed out that in the few days since the Newtown massacre, 900 Americans had been shot. 300 died and 600 were wounded. Of that 900, one third were shot accidentally (small comfort!), two thirds as a result of crime. So the Newtown massacre only has special significance because the majority of the victims were children. Yet in Canada, with almost as many firearms in public ownership, there is a fraction of the amount of deaths, gun crime or gun related injury. Why is that?

    Could it be that the wrong people have easy access to guns, the mentally unstable or criminals and the propensity to ‘Go Postal’ and shoot as many people as possible before committing suicide. The term ‘Going Postal’ only came into common usage in America because of the number of employees of the US Postal Service who would bring a gun to work and then kill many co-workers at the depot before committing suicide.

    Ever since draconian gun laws were introduced in the UK, we can feel smug in the knowledge that very few people die by gun. However, gun laws did not protect the public in the Cumbria shootings of 2010 and 12 people died as a result. Criminals still regularly get hold of illegal firearms and they are even rented out by the hour.

    Americans will fight hard to protect their rights, because they had to struggle to get them in the first place. They believe that the right to bear arms is not under threat by people concerned for the well being of society, or the protection of young children, but is an assault on the American way of life by liberal (or communist) thinking which intends to destroy the very fabric of their society. Hence Charlton Heston (a liberal in his youth, but Republican in old age) stating that they would only take his guns from his “Cold dead hands”.

    What America needs is a public inquiry, coupled with a national debate to find a solution that keeps firearms out of the hands of people unqualified to hold them. The words of the second amendment do say:

    ‘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 operative words should be “Well Regulated”. Yet it is shocking that virtually all firearms in the United States are un-registered. The exact number of guns is not known and very few people have been subjected to any form or screening for suitability to hold them. Gun control differs from state to state only in the degree to which firearms can be carried and not whether they should be sold at all.

    It appears that the only solution would be to enact Federal law which out-laws the possession of unregistered firearms on penalty of draconian Federal punishment. Federal prison being far harsher than state or county prison.

    Licenses would only be issued to those who have been psychologically tested and approved, can store their weapons securely and safely, so they cannot be accessed by those without a license and/or supervision. As in the UK, firearms licenses would have to be re-qualified each year and the cost of processing the license would be borne by those applying.

    Of course the American gun lobby will fight this tooth and nail (or should that be tooth & claw!), but the truth is that until America’s gun fatalities fall below that of their Canadian neighbours, then Americans should not be trusted with firearms unless they have qualified to do so by being ‘Well Regulated’.

    There’s an old joke from the Second World War. When the British fired, the Germans would duck. When the Germans fired, the British would duck. When the Americans fired, everyone would duck!

  3. It’s not legislation that needs to be changed, it’s the mindset of those who whoop and holler and believe that Hollywood is real and guns are acceptable in order to fit in. So no… do not hold your breath.

    • As the article mentions, a large number of firearms are held in rural communities. On the whole, these are used for hunting or pest control and not to commit crime, kill or injure people. I happen to know someone who lives on a farm and he posts videos on You-Tube on the various guns he uses to control pests.

      The problem is that most guns owned in urban environment are either to commit crime or defend against it. They are mostly hand guns (little use in pest control) or even fully automatic weapons which could only conceivably be useful in war time.

      Mayor Bloomberg has the right approach. Ever since New York employed gun control, there has been fewer fatalities. It doesn’t stop them altogether (as the Empire State Building shoot-out proved) but it does bring the numbers down. It’s time to make it illegal to carry unless you are authorised by the State. No-one needs an Uzi or a Mac-10 to defend their apartment. or stop a mugging.

  4. I spent quite a while looking at the portion of Gary Kleck’s study that covered burglary in the US and the UK, and it’s awful. It compares figures from different years in the 2 countries (from memory, his 1991 study uses US figures from the 80s in the US rather than 1991), and importantly the US (from the US victim crime survey) figures measure different crimes than the UK (at the time, the BCS).

    In short, US burglaries in which the householder encounters a burglar face to face are generally no longer counted as a burglary, but a robbery, or assault or whatever results. In the UK, they’re still counted as burglaries even if there’s an encounter and some low-level violence is used.

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