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Gun control in the US: its difficulties and a potential way forward

January 14, 2013

In the wake of another tragedy the issue of gun control has again been brought to the forefront of US politics. English newspapers and columnists, regardless of right or left wing leanings, argue that gun control presents an easy method to curb such attacks (Younge, 2012; Leonard, 2012). However I argue that such calls ignore the historical and legal particularities of the US which act as a barrier to gun control.

Guns and the US Constitution

The piece of legislation central to the argument is the Second Amendment of the US Constitution, the right to bear arms. The concept of armed citizens within a democratic system is not unique to the founding of America. French philosopher Jean Bodin argued that monarchies would be wise to remove the populations’ arms as a way to reduce their ability to challenge the state while in a democracy the people could be, and should be, armed, (Shalope, 1982). Bodin points out that weapons allow citizens to directly affect the ruling power should the participatory structures guaranteed by democracy fall down. James Madison, a figure who was influential in drafting the Constitution, asserted that America was unique in being willing to arm its citizens and compared the fledgling nation to Europe where leaders were afraid to arm their citizens (ibid).

However the Second Amendment can be interpreted in two ways. One interpretation is that the amendment references the right of an individual to own arms, the other is that the amendment references the right of a state to retain a militia independent of federal authority (ibid). The exact wording of the Amendment reads: “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” (New York Times, 2012). Both interpretations outline the same rationale for the Second Amendment: protection against potential repressive and undemocratic actions by the central Federal government.

Since the 1930s the dominant interpretation of the Second Amendment was the concept of a non-politicised state militia (ibid). However the landmark court case of the District of Columbia verses Heller in 2008 allowed the concept of a constitutional right of a state to posses a militia to become dependent on the right of an individual to bear arms. Heller was a DC policeman who tried to register a gun he wished to keep at home but his request was turned down because handguns were banned in Washington DC: Heller then challenged the State’s decision as unconstitutional (Supreme Court of the United States, 2008). The Supreme Court’s interpretation of the Second Amendment reads:

“The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.” (ibid).

Thus the court ruled DC’s handgun ban, and the trigger-lock mechanism that disabled a guns’ functionality, as unconstitutional (ibid).

This means that individual gun ownership is legitimised by the Constitution. That is not to say that US Constitution cannot be changed, it has been amended 27 times: giving the vote to women; lowering the voting age and disallowing the limitation of a citizen’s vote based on racial characteristics (Scholastic, 2013). Many of these amendments happened without major incident, though the latter amendment provided an ideological conflict between the Federal Government and many southern states leading to the American Civil War.

Guns and government legitimacy and personal safety

The legitimacy of gun ownership is intrinsically related to an individual’s trust of the central government: if the government is seen as oppressive or unable to confer unbiased protection to its citizens, an individual has more reason to arm his or herself. In the aftermath of the Balkans conflicts of the 1990s, the disarming of individuals became a major challenge. In a 2004 poll conducted in the South Serbian municipalities, self protection was cited by 61% of Serbian household heads and 70% of Albanian household heads as a reason for owning a weapon (Kopel et al., 2008: 433). A separate survey found that a lack of trust of the police prevented people from handing in their weapons during a 2003 amnesty during a state of emergency (ibid). Actions by ethnically biased, and thus illegitimate, central governments mean that individuals perceive guns as a security asset rather than a threat.

Another example is the Karamajong pastoralists of Uganda. The Karamajong had pooraccess to arms which made them susceptible to cattle rustling from neighbouring groups in Kenya and Sudan (ibid). Ugandan police were ineffective at providing protection, instead focussing on preventing the Karamajong from accessing weapons (ibid). As the Karamajong became better armed, government attempts to disarm the group provoked violence on both sides. Subsequent gun amnesties have proved ineffectual as the Karamajong distrust the government and doubt the police’s ability to provide protection: areas where gun amnesties have been successful have suffered from an increased incidence of cattle rustling (ibid).

 This creates a problem for the Federal Government as its legitimate role is to uphold the Constitution. The Oath of Office taken by all Federal civil servants outlines this role:

“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” (US Office of Personal Management, 2013)

This creates an awkward position for the government vis-a-vis gun control: if a state limits an individual’s freedom to gun ownership (without proper reason, such as previous criminal convictions), the Federal government has to step in and reassert the individual’s constitutional rights. This dynamic was shown during the case of DC verses Heller. However any move by the Federal government to make widespread restrictions on gun ownership will violate its role to uphold the constitution and diminish its legitimacy. This in turn would legitimise gun ownership and the Second Amendment as a means to check an illegitimate government. Any attempts to enforce a ban could lead to further mistrust, and an increase in gun ownership, as shown by the example of the Karamajong in Uganda.

Gun ownership and other countries

Switzerland is often touted by gun advocates as an example of how firearms can exist in a stable, law-abiding society (Halbrook, 1999). It is worth noting that although spree-shootings are rare in Switzerland, they do occur, with the most recent occurring on 2/1/2013 in Daillon and deadliest occurring in 2001 with 14 fatalities (Heilprin, 2013). Firearms are involved in nearly 25% of the 1,100 suicides a year in Switzerland (ibid).

However guns have a markedly different symbolic meaning in Switzerland compared to the US. In Switzerland, all males (and female volunteers) retain their rifles after military service, the Swiss frequently cite their heavily armed populace as the reason the Nazis never invaded (Heilprin, 2013; Palmer, 2010). The focus is thus less on defence against one’s own government but rather against invasion and aggressive neighbours. This may explain why there is no constitutional guarantee of a citizen’s right to a weapon (the Swiss government could theoretically remove this right) (Palmer, 2010). This allows the government to enact central authority over civilian gun access and maintain legitimacy. For example in 2007 the government passed legistlation that gave it powers to request that all army ammunition for civilian guns be kept in depots, and to forcibly confiscate guns from citizens who enter psychiatric care or are deemed mentally unstable (Heilprin, 2013). Thus, one of the reasons Switzerland has a lower incidence of gun violence is that unlike in the US, the Swiss government can pass legislation which minimises gun violence.

Previous attempts to limit guns in the US and their effectiveness

Within the USA, some states and cities have implemented initiatives to try to stem the negative effect of guns. Indianapolis, to test the effectiveness of illegal gun seizures, increased seizures in one area while decreasing them in a control area (Sherman, 2001: 17). In the first area violent gun crimes dropped by 50% while in the comparison area they increased by 22% (ibid). Similarly when Boston upped illegal gun seizures in the early 1990s, a reduction in the city’s homicide rate followed (ibid).

In 1988 Maryland banned ‘Saturday Night Special’s guns’, cheap, low quality handguns particularly associated with crime (Vernick et al. 1999: 260). The effectiveness of this initiative was shown by the Youth Crime Gun Interdiction Initiative (YCGII) which began in 1996 (ibid). Under the YCGII, 17 US cities, including Maryland, agreed to submit trace requests for all crime guns, defined as “any firearm that is illegally possessed, used in a crime, or suspected by law enforcement officials of being used in a crime” (ibid). The YGGII found that from 1996 crime in Maryland relating to the banned guns predictably decreased (ibid: 262). It has been argued that selective gun bans, especially on handguns, will merely lead to criminals substituting banned weapons with more powerful and higher calibre guns (Kleck, 1991). However evidence from the YCGII found that, while there was a substitution effect, it did not outweigh the decrease in banned gun use (Vernick et al. 1999: 261). Such examples show that gun control can have a significant effect on reducing gun violence.

The big leap in federally mandated gun control was the 1993 Brady Bill which required gun dealers to perform background checks on customers and to refuse the sale of firearms to convicted felons and other unsuitable candidates (Sherman, 2001: 14). In a study of 2640 California background checks, the sample’s 170 convicted felons were 18% less likely to be later arrested for gun offenses than people who had been previously arrested for felony offences but not convicted, thus background checks for convicted felons seemed to discourage future firearm offenses (ibid: 17).

The Supreme Court ruled that the bill was unconstitutional (see the case of Printz verses the United States), because  the Federal government was dictating the obligations of the state police in enforcing and assisting background checks (Supreme Court of the United States, 1997).  However states were allowed to voluntarily enforce background checks (ibid). By 1998 all states had voluntarily enforced background checks on gun purchasers, with the last state to do so being the traditionally pro-gun state of Arkansas (US Department of the Treasury, 1998).

The effect of the recent shootings

The tragedy of the recent shootings at Sandy Hook has had a dramatic affect on gun policies in the US. Predictably Democratic politicians have been vocal in their support of increased gun control. Jose R Peralta said he would limit ammunition buying to 500 rounds per month while another argued that firearm purchases should be limited to one per month, to stop reselling and gun trafficking (New York Times, 2013). This legislation could prove effective as most homicides are committed with illegally procured handguns (Sherman, 2001: 15). Governor O’Malley of Maryland is arguing for a ban on assault rifles and a restriction on sales to potentially mentally unstable buyers (Edwards, 2013).

What is more interesting is that some politicians from the traditionally pro-gun Republican party seem open to dialogue about gun control. Chris Christie of New Jersey argued that there were other issues at the heart of the atrocity but conceded that he was open to discussing stricter gun laws (ibid). In Arizona John McCain claimed that he would not be averse to bans on specific weapons and ammunition and rejected the idea, vocalised by many Republicans, that it was too early to start looking at legislative remedies (New York Times, 2013). However key House Republicans stated their opposition to creating any new limits on firearms (ibid).

After some deliberation Obama released a selection of laws which he requested Congress to pass. One important law is to make gun background checks universal, another seeks to reinstate the 1994 assault rifle ban and another will toughen penalties on individuals who sell guns to unsuitable individuals (Adams, 2013). In addition to these more direct laws were Obama’s 23 executive policies. These policies were more general calls for the private sector to invest in innovative gun safety technologies, attorney generals to re-evaluate what criteria bans a person from purchasing a firearm, improve the information available for background checks and to maximise enforcement efforts to prevent and prosecute gun crime (CNN, 2013).

What can be done?

Given the significance and purpose of the Second Amendment, Obama’s proposal of executive action seems destined to provoke a backlash. The threat of executive action and a potential ban on assault rifles has caused sales of the weapons to skyrocket (Levs, 2013). The US is constrained by its Constitution and any attempt to centrally impose control on gun ownership will delegitimize the government and in turn reify the logic of the Second Amendment. The example of Uganda and the Balkans has shown that any attempt by a delegitimized government to reclaim already owned weapons, by force or amnesty, is likely to end in failure.  

In spite of the unifying effect of the Sandy Hook tragedy, Obama’s proposed laws have faced criticism from Republican politicians citing it as unconstitutional (Adams, 2013). The accommodating attitude of Christie and McCain may soon give way to partisanship and the chances of the proposed laws being passed in Congress will be diminished.

The role of the Supreme Court in labelling the Brady Bill as unconstitutional and unenforceable by the Federal Government indicates that any legislation agreed upon federally and federally enforced will eventually be struck down.  The case of Printz verses US may be used as a legal pretext to fight the proposed assault rifle bans and federally enforced universal background checks. Another problem is that the case of Heller verses DC could be used to fight individual state-level gun control restrictions, limiting the amount reform states can implement, regardless of how receptive they are to increased gun control.

However the Brady Bill provides an example of how positive changes in gun control may occur in the future. Though the bill was struck down, it was eventually adopted by all states due to the inherent logic of background checks as a means to prevent dangerous individuals from acquiring firearms. The sheer tragedy of the Sandy Hook massacre, and the fact it came just a few months after the Colorado Aurora shootings, has pushed pro gun politicians into admitting the need for debate. Obama’s proposed executive action has yet to be announced. As long as the legislation does not violate the logic of the Second Amendment too heavily and does not allow for what could be perceived as excessive Federal interference (for example upping illegal gun seizures or requiring that all citizens lock their guns in cabinets while at home), it may be adopted on a voluntary basis by many states.

 

References

Adams, Richard. 2013. Obama and Biden unveil gun control agenda in White House speech – live. The Guardian website (http://www.guardian.co.uk/world/2013/jan/16/obama-biden-gun-control-announcement-live). Copy available from author.

CNN. 2013. Obama announces 23 executive actions, asks Congress to pass gun laws. CNN website (http://news.blogs.cnn.com/2013/01/16/obama-to-announce-gun-control-proposals-shortly/). Copy available from author.

Edwards, Aaron. 2013. Gun Control: Sandy Hook Has States Looking at Tighter Laws. Lichfield County Times website (http://www.countytimes.com/articles/2013/01/11/news/doc50f0b028e3319211754543.txt?viewmode=fullstory). Copy available from author.

Halbrook, Stephen. 1999. Guns, Crime, and the Swiss. The Independent Institute website (http://www.independent.org/newsroom/article.asp?id=2478). Copy available from author.

Heilprin, John. 2013. Swiss gunman kills three, injures two with old military rifle. National Post website (http://news.nationalpost.com/2013/01/03/swiss-gunman-on-shooting-spree-kills-three-injures-two-with-old-military-rifle/). Copy available from author.

Kleck, Gary. 1991. Guns and Violence: A Summary in the Field. Prepared for delivery at the 1991 Annual Meeting of the American Political Science Association, The Washington Hilton, August 29 through September 1, 1991. Copyright by the American Political Science Association. http://www.catb.org/esr/guns/point-blank-summary.html

Leonard, Thomas. 2012. Has the Sandy Hook massacre finally made America fall out of love with guns? The Daily Mail Online website (http://www.dailymail.co.uk/news/article-2251746/Has-Sandy-Hook-massacre-finally-America-fall-love-guns.html). Copy available from author.

Levs, Josh. 2013. Biden: Obama exploring executive orders to combat gun violence. CNN website (http://edition.cnn.com/2013/01/09/politics/gun-control-battle/index.html). Copy available from author.

Levs, Josh. 2013. Obama executive order, gun control battle: Countdown to new wave in gun violence battle begins. CNN website (http://www.wptv.com/dpp/news/political/obama-executive-order-gun-control-battle-countdown-to-new-wave-in-gun-violence-battle-begins). Copy available from author.

Palmer, Brian. 2010. Do other countries have a constitutional right to bare arms. Slate website (http://www.slate.com/articles/news_and_politics/explainer/2010/12/have_gun_want_to_travel.html). Copy available from author.

Scholastic. 2013. How the US Constitution has Changed with the Times. Scholastic website (http://www.scholastic.com/teachers/article/how-us-constitution-has-changed-times). Copy available from author.

Shalope, Robert E. 1982. The Ideological Origins of the Second Amendment.  The Journal of American History 69. Copy available from author.

Sherman, Lawrence W. 2001. Reducing Gun Violence: What Works, What doesn’t, What’s Promising. Criminology and Criminal Justice 1: 11-25.

Supreme Court of the United States. 2008. The District of Columbia vs Heller – No. 07-290. Legal Information Institute website (http://www.law.cornell.edu/supct/html/07-290.ZS.html). Copy available from author.

Supreme Court of the United States. 1997. Printz v. United States 95-1478. Legal Information Institute website (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0898_ZS.html). Copy available from author.

The New York Times. 2013. Gun Control. New York Times website (http://topics.nytimes.com/top/reference/timestopics/subjects/g/gun_control/index.html). Copy available from author.

US Office of Personal Management. 2013. Oath. US Office of Personal Management website (http://www.opm.gov/constitution_initiative/oath.asp). Copy available from author.

US Department of the Treasury.  1998. Brady Background Checks to Resume Nationwide. US Department of the Treasury website (http://www.treasury.gov/press-center/press-releases/Pages/rr2157.aspx). Copy available from author.

Vernick, Jon S, Webster, Daniel W and Hepburn, Lisa M. 1999. Effect of Maryland’s law banning Saturday Night Special handguns on crime guns. Injury Prevention 5: 259-263.

Younge, Gary. 2012. Newton shootings: if not now, when is it the time to talk about gun control? The Guardian website (http://www.guardian.co.uk/commentisfree/2012/dec/14/newtown-school-shootings-gun-control). Copy available from author.

 

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4 Comments
  1. St John Piano permalink

    I liked this – didn’t realise that the 2nd Amendment didn’t always apply specifically to individuals.

    Cheers for referencing everything. Most people don’t put that extra effort in.

  2. Catherine permalink

    Fascinating analysis. Very interesting information about the 2nd amendment – I had no idea that it had multiple interpretations.

  3. Now you say it, it doesn’t seem likely Obama can do much except enforce existing laws. It might be enough.

  4. Andrew Brown permalink

    Fascinating indeed. Albania, Uganda, USA: how well they go together!
    It may be ill-judged to argue that gun control presents an easy method to curb attacks, but can it really be beyond the ability of US citizens to tackle arms addiction?

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