It is clear that American society needs a complete reset. There is simply no reason for this nation to have almost 500 million guns
By Anil Madan
Why can’t we just ban guns? Why does anyone need an assault rifle or a magazine with one hundred or more rounds? These are questions I am asked often, all too frequently, by my friends in this country. Friends from other countries tell me that they simply cannot understand why America allows such a proliferation of guns and particularly, semi-automatic weapons and assault rifles.
These questions, posed from time to time during lulls between mass shootings, take on more urgency and seem more pressing after each new massacre, as they have in the wake of the recent shootings in Buffalo (New York), and Uvalde (Texas). There is also, at these times, a tinge of frustration and outrage.
People expect answers to these questions as if the solution is entirely a legal matter. To be fair, often the law does set policy but not always. Well, I do have answers, at least some answers. Sadly, including bewilderment that the Constitution may not allow sensible regulation of guns, these are not the answers that any rational person will find acceptable.
The answers are, first, the US cannot simply ban all guns because the Second Amendment forbids such a ban and, second, although no one needs an assault rifle or a magazine loaded with a hundred or more rounds, any Republican who deals with that truth honestly, won’t be a Congressman or Senator ere long. That second answer underscores an important point: we could re-enact a ban on assault rifles (yes, we once did have such a ban) and the courts would likely uphold it, but first, enough Republicans would need to stop genuflecting at the NRA (National Rifle Association) altar in order to get such a bill through Congress.
For most people, it is either obvious or intuitively deducible that if you have easy access to guns, there will come a time when somebody gets shot and killed. When a lot of “somebodies” get killed, Republicans come close to admitting this irrefutable truth, but never close to admitting that most people would get by just fine without owning a gun and that fantasies about defending oneself against the government when “they come to get you,” are just that, fantasies.
No one seems to have an accurate count on how many guns we have in this country. Estimates range as high as 450 million total, and perhaps 10-20 million of these are assault and semi-automatic weapons. To these totals, one needs to add millions of ghost guns and 3D printed guns. In 2020, more than five million guns came from Turkey, Austria, Brazil, Croatia, and Sweden, the top five countries on the list of suppliers. And, of course, as members of drug cartels move in and out of the US, they are often armed and guns are smuggled back and forth across the border. The total number of guns may be more than 500 million. With just one bullet per gun, that’s enough to kill every American and then some.
“Guns don’t kill…”
Some Republicans dispute the proposition that easy access to guns increases the frequency of their use. We hear attempts at forming aphoristic declarations that devolve to pablum such as: “guns don’t kill, people kill.” The repetition of this mantra by the hoi polloi has become a standard in the speech of the rabble in the US. It reflects how much NRA lobbyists have succeeded in capturing the narrative around gun control and how little traction advocates of sensible gun regulation have gained in the court of public opinion.
This is curious because in other contexts, supporters of gun rights have no problem with sensible controls and regulation. Guns are not permitted on commercial aircraft and people submit to screening at airports mostly without protest. Nor are guns permitted in courthouses, hospitals, government office buildings and actually, even in schools notwithstanding that schools have too often been targets of gun violence.
However, once we get to the constitutional level on the issue of gun control, the problem takes on an entirely different twist.
The succinct text of the Second Amendment to the Constitution 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.”
Now, let us drop the qualifying prefatory clause and rewrite the Second Amendment to read: “The right of the people to keep and bear Arms, shall not be infringed.”
Well, that is exactly what the Supreme Court did in the District of Columbia v. Heller case in 2008. In other words, Justice Scalia (since departed to the happy hunting grounds sans gun in his shroud) declared that the prefatory language is surplus and has no meaning.
Let us digress for a moment to the dissenting opinion by Justice Stevens. He pointed out that the preamble “A well regulated Militia, being necessary to the security of a free State,” makes three important points. It identifies the preservation of the militiaas the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.”
Justice Stevens also noted that the language of the Second Amendment is striking in its “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense.” For him, the preamble sets forth the object of the Amendment and informs the meaning of the remainder of its text.
Now, we return to Justice Scalia. Ignoring the preamble, he wrote that the language of the Amendment certainly is concerned with the right to self defense and the use of weapons for lawful purposes. Thus, he concluded, looking backwards from his construction of the text, the preamble is consistent with his interpretation of the text.
Justice Stevens retorted: “The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely ‘to ensure that our reading of the operative clause is consistent with the announced purpose.’ That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some ‘logical connection’ between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to find its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.”
Justice Stevens’ point is well taken. Scalia’s position certainly was curious coming from a judge who claimed to be a strict constructionist whose aim is to discover the original intent of the framers of the Constitution and give meaning to all of the language in the document.
And there you have it. As strained a reading as Scalia’s was, four justices agreed and by a 5-4 majority, the Supreme Court essentially erased any possibility that gun ownership unrelated to service in a militia, could be banned. What exactly was the heinous law that the Supreme Court struck down? The District of Columbia law at issue banned handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; and provided separately that no person may carry an unlicensed handgun, but it authorized the police chief to issue 1-year licenses; and required residents to keep lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device.
Buried in his opinion in the Heller case, Justice Scalia made some remarkable statements that bear mention not the least because the four other justices who joined his opinion did not take issue with them. He began with the observation: “Like most rights, the right secured by the Second Amendment is not unlimited.” The right is not a right to carry any weapon whatsoever in any manner whatsoever and for whatever purpose. He noted that machine guns could be banned and with seeming approval, noted that prohibitions on carrying concealed weapons have been upheld.
Scalia declared that his opinion casts no doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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.
More strikingly, he qualified his opinion as stating only that the sorts of weapons protected were those “in common use” at the time the Amendment was adopted. This limitation, he wrote, is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
In what appears to be a contradiction of everything he had written in his lengthy opinion, he added: “It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
It seems that Justice Scalia and the four Justices signing on to his opinion were inviting Congress to enact sensible restrictions on guns.
Ban on assault weapons
So, where does this leave us? Pretty much nowhere. As I mentioned above, the US did enact a ban on assault weapons but that law was long extinct by the time Heller was decided. In a 1994 crime control and law enforcement law, Congress included prohibitions on the manufacture for civilian use of certain semi-automatic weapons defined as assault weapons and also large capacity magazines. Unfortunately, this bill included a 10-year sunset provision and it expired in September 2004. The law was upheld by the court against challenges on constitutional grounds. Attempts to re-enact or renew the ban have been unsuccessful.
Was the ban effective? A Northwestern Medicine study concluded that it was. The study found the Federal Assault Weapons Ban including the ban on large capacity magazines resulted in a significant decrease in public mass shootings, number of gun deaths and number of gun injuries. Its authors estimate that the ban prevented 10 public mass shootings during the time it was in force. They concluded that the law would have prevented 30 public mass shootings that killed 339 people and injured an additional 1,139 people. As might be expected, gun enthusiasts and the NRA dispute the effectiveness of the ban.
Today, there are renewed calls for Red Flag laws and for laws to require background checks and mental health screening, as well as to limit sales to minors. Each of these proposals, if enacted, may prevent future shootings and they are well worth pursuing. This is especially true of a ban on assault weapons and large capacity magazines. But none of these measures is a panacea. First, it is unlikely that any attempt to confiscate weapons already owned by Americans can be enacted and relying on voluntary turn-in programs will not meet much success in a nation obsessed with gun ownership.
The Rockefeller Institute of Government reports that there were 402 mass shootings in the US from 1966 to 2020. And there have been more in the years since. These reported shootings resulted in 1,449 deaths and 3,590 injuries. From 1966-1975, there were 11 mass shootings and during 2011-2020 that number skyrocketed to 160. The average age of mass shooters was 33.2 years and 74.6% of perpetrators used handguns.
So, an assault weapons ban, or a ban of sales to those under 21 addresses only a bit of the problem.
It is clear that American society needs a complete reset. There is simply no reason for this nation to have almost 500 million guns. At some point, we have to get over the idea that the government is out to get us or that we as citizens are in a position to take on a government helicopter gunship firing hundreds of bullets per minute with our handguns. These looney fantasies feed paranoia and conspiracy theories. Unfortunately, they also lead to the deaths of innocents. The challenge is to acknowledge that ownership of guns for lawful purposes is not incompatible with sensible laws and regulations that prevent unnecessary and avoidable deaths.
And yes, guns do kill people as do idiotic conspiracy theories that keep Congress from enacting sensible laws to curb this senseless carnage.
Mauritius Times ePaper Friday 3 June 2022
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