MUSINGS - Exercising a fundamental right

I will give you my gun when you pry it from my cold dead hands – National Rifle Association (NRA) bumper sticker

Philinte: Do you wish harm to all mankind?
Alceste: Yes, I have conceived a terrible hatred for them –Act I, Sc 1 -“Le Misanthrope” -Moliere [1666]

An apparent misanthrope, of a twisted mind and hell-bent on taking as many people as possible with him as he shuffles off this mortal coil, fortified by a bizarre official interpretation of a Constitutional amendment that ostensibly relates to a collective entitlement but that has been construed as permitting any lunatic with enough wherewithal to arm himself to the teeth with high powered weaponry, sends his girlfriend home to the land of her birth, rents a luxury hotel suite overlooking a concert venue in Las Vegas and proceeds to murder no fewer than 58 innocent souls assembled to enjoy the music, thereby giving the lie to the popular slogan that “what happens in Vegas stays in Vegas!”

The media will record that this abyssal conduct on his part was a new record for the most people ever murdered in a mass shooting in the US. The resultant “human cry”, as it is put in the Barbadian mondegreen, sounds like so much crocodile tears in a country that can place men on the Moon but that seemingly has not grasped the notion that permitting a near unlimited civic right to bear arms and thus to use them however might lead inexorably to these sorts of tragedies.

I have explored before in this space my own interpretation of the notorious Second Amendment that is utilised as the vehicle for this dubious and enabling right. According to the text of the provision;

“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.”

Given that a militia does not comprise one individual solely, and given the primacy accorded that body in the structure of the text, one might very well be tempted to read the amendment as empowering the people to keep and bear arms purely for the purposes of forming the necessary well-regulated militia for protecting the security and freedom of the state. This, however, has not been the construction that has found favour with the Supreme Court charged with the overarching interpretation of the Constitution.

In its 2008 decision in District of Columbia v Heller, the Court, by a five to four majority, iterated that the Amendment protected an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes such as self-defence. Further, they held that the prefatory clause in the Amendment that I rely on in my argument to control its spirit does not in fact limit or expand the second part whose text and history connotes an individual right to keep and bear arms.

The justices also made reference to the amendment’s legislative history, noting that it was the product of a response to the fears of the anti-federalists that Federal Government would disarm the militia in favour of a standing army or a select Federal militia. The Second Amendment was thus enacted to deny Congress the power to abridge the “ancient” right of the people to keep and bear arms so that the ideal of a citizens’ militia would be preserved.

Moreover, although it did not form part of the ratio of the decision, the Court noted that at least three states’ proposals had referred unequivocally to the individual and not merely collective right. The law seems to be settled given that the Supreme Court is at the apex of the system, unless a future Court is minded to overrule this precedent.

As distasteful as it may be, the media have made much of the record number of those killed, a record that is likely to be inevitably broken so long as the status quo continues. An instructive WhatsApp post in one group last week, explored the illogic behind the individual right to bear arms whereby a youngster, thirteen years of age, is appropriately unable to purchase alcohol, cigarettes or adult magazines, but is nonetheless able to secure the supply from a dealer of a high-powered firearm intended for the sole purpose of ending a life, even if not necessarily that of a human being.

Veteran Congressman Steve Israel, in an op-ed piece in the New York Times last Monday, also addresses the issue of the likelihood of a reprise of the Las Vegas massacres. He puts it bluntly, “In the wake of one of the deadliest mass shootings in our nation’s history, perhaps the most asked question by Americans is, and “Will anything change?” The simple answer is no. The more vital question is, “Why not?”

Israel recounts his failed attempt as a freshman to introduce legislation to require safety locks on certain guns when he failed to gain the support of a fellow freshman Democrat who begged off on the ground that “In my district we close the schools on the first day of hunting season”.

He relates too his disappointment after the murder of 26 children and adults at the Sandy Hook Elementary School in 2012 and the image of President Obama with tears running down his cheeks. His thoughts that finally something would be done were dashed when the debate morphed into one over the rights of gun owners rather than the right to life of young schoolchildren. Some congressional colleagues, he writes, confided that any vote for gun safety would lower their NRA scores and increase the probability of their demise in the next election.

The identical scenario was to obtain after the mass shootings in the Orlando, Florida nightclub in June 2016 and the failure of a proposed amendment to prevent people on the terrorist watch list from purchasing firearms, opposed by the Republican chairman of the House Appropriations Committee on the basis that “in America, everyone is
innocent until proven guilty”.

This principle is not peculiar to the US, but according to an October 2 article in the online newsmagazine Vox, there are 29.7 homicides by firearm per 1 million in the US people as compared to 1.4 in Australia and 1.6 in New Zealand, two jurisdictions that embrace the identical presumption.

Congressman Israel offers finally three reasons why nothing will change. First, he notes, the gun lobbies are now in a race to the bottom to see who can become more brazen and more extreme since more moderation means less market share. Second, the political right now adheres to the view that anything less than total subservience to the gun lobby is perceived as supporting gun confiscation, anathema to that sector. Third, there is the public inoculation to gun violence –“You’ll read this essay and others like it, and turn the page or click another link”, he writes presciently. You’ll watch or listen to the news and shake your head, then flip to another channel or another app. This horrific event will recede into our collective memory….”

Exactly what the gun lobby is counting on.