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Right to bear arms is backfiring

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The 20-year-old gunman who opened fire at a Connecticut elementary school, killing 20 children and six adults, carried three rapid-fire weapons: a Bushmaster rifle, a Sig Sauer pistol and a Glock pistol. According to a 2011 report by the Washington-based Violence Policy Center, the Glock, in particular, is a "favourite of mass shooters" due to its light design and easy-to-reload feature,

He had access to this trio of rapid-fire weapons because his mother, whom he reportedly also murdered, had legally obtained and registered them. Why anyone would need such assault weapons to defend themselves or use for hunting or target practice is a question that does not seem to have a logical answer.

Is this really what James Madison, the "short, shy, soft-spoken, scholar-like man" (in the words of one of his biographers), constitutional advocate and the fourth president of the United States, had in mind when he included in his list of amendments to the U.S. Constitution one that, as ratified in 1791, stipulated: "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?"

Never mind the gun insanity that has now led in the U.S. to nine mass shootings (three in the past five months) since 2007 and resulted in the senseless deaths of 124 people. Did Madison and the other framers of the constitution of the late-18th century actually envision a situation where American citizens could enter a shopping mall with a gun holstered, as they can in Virginia, or walk around in public with a concealed weapon in Illinois?

Inexplicably, according to two recent U.S. Supreme Court rulings, that indeed seems to be the case. Both were decided 5-4 in favour of the conservative majority led by Chief Justice John Roberts. In June 2008, in Heller v. District of Columbia, the court decided that D.C.'s Firearms Control Regulations Act of 1975, which restricted the use of handguns in a federal jurisdiction, was unconstitutional and a violation of the second amendment.

Then, two years later in McDonald v. Chicago, the court determined that Illinois' 28-year-old ban on handgun ownership also violated second amendment rights and therefore extended the earlier decision in Heller to the states as well. In effect, these rulings deemed that the constitution "gives individuals equal or greater power than states on the issue of possession of certain firearms for self-protection."

And then on Dec. 11, three days before this latest tragedy, the federal Appeals Court, adhering to the two Supreme Court rulings, ruled 2-1 against Illinois' attempt to ban concealed weapons. It is likely Illinois will appeal this decision and it will be sent to the Supreme Court with the predictable results.

In these controversial decisions, the judges on both sides of the dispute used history to bolster their arguments. "It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as states legislated in an even-handed manner," wrote Justice Samuel Alito for the majority in June 2010.

Some months later in an interview with Fox News, Justice Stephen Breyer, who was part of the dissenting minority, declared that Madison would have approved of gun restrictions and only put in the second amendment to appease his opponents, who believed that "Congress would call up state militias and nationalize them." Breyer maintained that history was on his side.

As the chief architect of the first 10 amendments, the Bill of Rights, Madison's main objective "was to protect American citizens from abuse of state and federal power." With memories of British repression and fearful of excessive government power, the second amendment was passed by Congress and ratified by the states with a minimum of debate. The intention, writes David E. Young, a second-amendment expert (who was consulted in the Heller case), "was to assure the armed civil population's control over government-raised military force for the purpose of preventing oppression and tyranny... A free state was ensured by such an armed populace because the people were inherently able to prevent the forceful implementation of acts that violated their rights and the constitution."

At the same time, Pauline Maier, another noted American historian of this period, argues that Madison "did not include an unambiguous assertion of an individual right to own guns on his list; clearly he did not consider it one of the 'great rights' on a par with freedom of conscience and of speech."

Trying to precisely figure out what was in Madison's head is a mug's game at best, a reality Madison himself understood. "The use of words is to express ideas," he wrote in the Federalist Papers. "But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas."

Even if Madison and the other framers of the constitution believed Americans had a right to carry weapons to defend their homes, they were basing their decision on 18th-century circumstances with an 18th-century mindset. Constitutions are not written in stone. Laws change with the times and reflect current values and customs. Otherwise, there would still be public hangings in the U.S. and Canada, slavery would exist, schools in the American South would still be segregated, women would not be able to vote -- the list is endless.

Instead of defending their contentious positions for or against gun control based on their interpretation of a 27-word clause penned in 1789, Americans would be better served if the Supreme Court examined the current tragic abuse resulting from an untenable access to weapons -- irrespective of the lame NRA argument that "it's not guns that kill people, but people who kill people" -- and ruled accordingly with wisdom and common sense.

The real problem in the United States has nothing to do with constitutional rights and everything to do with a gun culture -- which, on average, takes the lives of more than 30,000 Americans a year -- that is out of control.

Allan Levine is a Winnipeg author and historian.

Republished from the Winnipeg Free Press print edition December 18, 2012 A10

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