SECOND AMENDMENT

I tuned in, on January 7, to the CNN ‘Town hall Meeting’ on gun violence in which the President of the United States participated and I found it painful to watch. Here was the holder of the highest office in the land and it was clear from the start that he had to advocate for common sense gun control measures with his hands tied behind his back. I am not a big admirer of the current holder of the highest office in the land and am very concerned about the tendency of his and recent other administrations to stretch the boundaries of executive power, but I still don’t like to see America’s President powerless to steer the conversation to where it really needs to go. And I don’t think that he had to limit his arsenal of arguments for gun control the way he did. The first words out of his mouth were: ‘I do respect the Second Amendment’. Of course he does, he has sworn to defend the constitution when he took office. But he failed to say: ‘But I believe that the Second Amendment does not forbid the Federal Government, and much less the States, to put in place reasonable, sensible restrictions on the trade and handling of firearms’. By not putting up that argument, he reduced the debate to a fight on the periphery of the issue.

How quick do we forget! Former Justice of the US Supreme Court John Paul Stevens wrote a book that President Obama should have read and referenced in this town hall meeting. The book, published in 2014, is titled ‘Six Amendments, How and Why we should change the Constitution’. In the book, Justice Stevens reminds us that—and I quote—“for over two hundred years following the adoption of the second amendment federal judges uniformly understood that the right to bear arms was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of the states or local governments to regulate the ownership or use of firearms.” This interpretation underpinned the 1939 Supreme Court decision in the ‘Miller’ case in which a unanimous Court held that Congress could prohibit the possession of a sawed-off shotgun, because that sort of weapon had no reasonable relation to the preservation or efficiency of a ‘well-regulated Militia’.

Justice Stevens writes in his book that during his tenure on the Supreme Court under Warren Burger he never heard any judge or justice express doubt about the limited reach of the second amendment and that he cannot recall ‘any judge suggesting that the amendment might place any limit on state authority to do anything.’ He quotes Justice Burger himself, who, in a 1991 appearance on the MacNeil/Lehrer Newshour remarked that “the Second Amendment has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud’, on the American public by special interest groups that I have ever seen in my lifetime.”

So, what has changed? 

In the first place, the National Rifle Association (NRA) has deployed a vigorous campaign against the Supreme Court’s limited interpretation of the reach of the Second Amendment, it has significantly grown its membership and found a way to place a litmus test on people running for public office. Candidates for public office who do not underwrite the NRA’s interpretation of the Second Amendment not only will have to do without an endorsement and financial support of the NRA, but expect active campaigning on the part of the NRA against their candidacy. NRA keeps the pressure on politicians by issuing a ‘rating’ from A-F for each elected office holder in the nation. Hence Warren Burger’s accusation of defrauding the public.

In the second place, the Supreme Court, in more recent rulings has changed the law of the land in at least two respects. In the ‘Heller’ case in 2008 a divided Court (five to four) held that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And an equally divided Court decided in ‘McDonald v. Chicago’ that the due process clause of the Fourteenth Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. (Note that in both cases the Court rules on ‘handguns’).

This case history shows a few things:

1.       That it is not so much the law of the land, including the Second Amendment of the Constitution, as well the heavy hand of the NRA that prevents Congress from taking reasonable, common sense steps to reduce, if not prevent, gun violence.

2.       That the Second Amendment does nothing to prevent regulation of military style weapons outside of the use by well-regulated militia (in modern terms, police, National Guard and military).

3.       That the Second Amendment does nothing to keep the federal government from putting a registration requirement (like vehicle registration) in place.

4.       That only the due process clause of the Fourteenth Amendment limits the states’ freedom to regulate the possession of handguns.

Opponents of further gun control point to the fact that in spite of unabated growth of the number of firearms in circulation, gun related homicides in the U.S. have decreased since 1993 from 7.0 to 3.2 per 100,000 people, cutting it by more than half, but they have no answer for the fact that, at that rate, gun related homicides in the U.S. are still at least five times higher than in the rest of the Western world. The CIA World Factbook puts gun related homicides in Italy at 0.7, in Canada at 0.5, in Germany at 0.2, in Australia at 0.1 and in Japan at 0.01 per 100,000 people. Total annual deaths by firearms in the U.S. have, since the start of the 21^st century remained remarkably stable at around 10-10.5 per 100,000 people. Every year around 30,000 people get killed in the USA by the use of a firearm. That is roughly equivalent to the number of traffic deaths, which, in 2014 was reported by the NHTSA at 32,675.

Don’t such numbers provide a compelling interest on the part of the government to take whatever steps it can to protect its people from harm caused by firearms?

A problem with firearms is that they die a very slow death. Other than cars, which generally get junked after 10-20 years, guns stay in circulation and therefore keep accumulating. A responsible government needs to acknowledge that guns, while they have a legitimate use, are (not unlike cars, pesticides, pharmaceuticals) inherently dangerous, and therefore need to be subject to regulation. The question is how much and what kind of regulation is needed to adequately protect the people. Only an open political debate and process can answer that question. My contention is that there is nothing in the U.S. Constitution, including the Second Amendment, to hold back the federal, state and local governments from putting effective safeguards in place against unnecessary gun related deaths in the U.S. The lawmakers just need to unshackle themselves from the iron grip of the NRA and muster the courage to do what is in the best interest of the public at large.

Contrary to what the NRA may want you to believe, nobody has any intent to take away the right to bear arms for the legitimate use of protecting life and property, hunting or recreational use like skeet trap and target shooting. Nobody will prevent any law abiding and qualifying citizen to acquire a gun for any of these purposes. The Second Amendment certainly protects against that. But it should stop just about there.

Congress should have the courage and moral fiber to defy the NRA and ban the sale and possession of any firearms that are not commonly used for the legitimate uses referred to above. It should also impose a registration requirement, so that illegitimate and criminal use of a firearm can be traced back to its owner. It should mandate the use of technology that prevents accidental discharge of a gun or the firing of a gun by anyone other than the registrant. Finally, it should get serious about enforcing the gun laws already on the books by appropriating the necessary funds to adequately staff the agencies charged with public safety and gun regulation. In all other respects it should defer to the states and local jurisdictions to meet the needs of their citizens in line with local traditions and circumstances.

It is a pity that the President of the United States on January 7 did not seem to realize how much leeway the law gives him and the Congress to dispel the fraud perpetrated upon the public by the NRA and work together on putting reasonable and common sense limits in place on the sale, carry and use of firearms in the U.S.