Arms and the citizen

If the United States had the same gun murder rate as India, approximately 9,000 American men, women and children who were slaughtered by gunfire in 2012 might still be alive today. If the US had had the same gun murder rate as India since 2000, more than 100,000 murdered American men, women and children might still be alive today.

This is due in part to the US Constitution, or at least to how the Supreme Court has interpreted the Second Amendment, which guarantees the "right to keep and bear arms". In many respects, the US Constitution has served as a model for constitutions around the world. Of the 188 nations that have written constitutions, the vast majority have adopted fundamental guarantees that were first fully articulated in the US Constitution.

Indeed, 97 per cent of all the world's constitutions now protect the freedom of religion; 97 per cent protect the freedom of speech and press; 97 per cent the right to equality; 95 per cent protect the freedom against unreasonable searches; 94 per cent the right of assembly; 94 per cent prohibit arbitrary arrest or detention; 84 per cent forbid cruel and unusual punishment; 84 per cent protect the right to vote; 80 per cent prohibit ex post facto laws; 72 per cent protect the right to present a defence and 70 per cent the right to counsel. These freedoms, first constitutionalised in the US, are now widely recognised as fundamental to a free, humane and civilised society.

Yet, only 1 per cent of all the other nations of the world recognise a constitutional right to keep and bear arms. The idea that individuals have a fundamental right to purchase and possess firearms has been resoundingly rejected by 185 of the world's 188 nations. There are few, if any, questions about which the world's nations are in such universal agreement.

This data is interesting not only because it shows how peculiar we Americans are in this respect, but also because it sheds important light on the meaning of the Second Amendment. What did the framers have in mind? How could they have had such an idiosyncratic notion of individual freedom? A long-standing puzzle about the Second Amendment is what it actually means. It provides: "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 puzzle turns on which of two possible interpretations of the text makes more sense. The first possible interpretation construes the text as guaranteeing individuals a constitutional right to purchase and possess guns. The second possible interpretation construes the text as guaranteeing individuals a constitutional right to purchase and possess guns for the purpose of serving in the militia.

In its 2008 decision in District of Columbia vs Heller, the Supreme Court, in a sharply divided five to four decision, embraced the first of these interpretations. The court's five "conservative" justices argued that the Second Amendment guarantees individuals a constitutional right to own guns for any lawful purpose, whether or not gun ownership is related in any way to serving in the "militia."

In a dissenting opinion, the four more "liberal" justices reasoned that a plain reading of the text of the Second Amendment makes clear that it was not intended by the framers to guarantee individuals a personal right to own guns for any lawful purpose, but to ensure, at a time when there were no professional police forces, no national guards and no standing armies, that the government would have the capacity to call up an appropriately equipped volunteer militia whenever it was needed to help preserve the peace.

Thus, in the view of the four dissenting justices, the constitutional right to own a gun was not an individual right, analogous to the freedom of religion, the freedom of speech or the right to counsel, but an instrumental right designed for a very specific and now largely obsolete purpose.

In a world in which there are now organised and well-armed police forces, national guards and standing armies, there is no longer any need for a citizen militia, and such entities no longer exist in the US or in most other nations of the world. The need for individuals to own a gun in order to serve in the militia, which was critical in the 1790s, is now moot.

All that is left, then, is the question of whether there is a fundamental personal right to own a gun for the sake of owning a gun, and on that question the nations of the world are in agreement — there is no such fundamental right, any more than there is a fundamental constitutional right to grow marijuana, to skydive, to drive 80 miles an hour or to own a pet lion.

By distorting the text and meaning of the Second Amendment and ignoring the common sense judgement of the rest of the civilised world, the five conservative justices fed into and reinforced the frenzy about gun ownership in America. And by preventing American citizens from engaging freely in the democratic process to decide for themselves what controls on guns are most sensible, those five justices tragically and needlessly set America apart from the rest of the civilised world — with predictable consequences. Perversely, a constitutional provision intended to keep us safe has been twisted by the conservative justices of the Supreme Court into one that endangers our children.

The writer is the Edward H. Levi distinguished service, professor of law at the University of

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