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The North Americans seem to be unable to introduce legislation that protects its citizens from mass slaughter by legally owned firearms. In the UK, 51 people were killed by firearms in 2011. In the United States, it was 8,583. Alistair Bonnington, who divides his time between Scotlathe and the USA, analyses the legal position.
As the year turns, America will look back at 2012 as a year of natural and self-inflicted disasters. The excessive heat, hurricanes and snow storms are beyond their immediate control. But why they regard themselves as powerless to stop the wholesale killing of their citizens by guns is beyond most non-US citizens. The recent appalling events in the little town of Newport, Connecticut raise yet again the debate on whether America should try to control the ownership and use of guns by law. Politically the task facing those who would seek to restrict ownership and use seems hopeless, despite the annual slaughter of numerous Americans by guns. Not only are such campaigners faced with the powerful and well funded pro-gun lobby led by the National Rifle Association, but they also have to overcome the Second Amendment to the American Constitution. That is a huge hurdle, because Americans regard their Constitution and the first 10 Amendments to it (the Bill of Rights) as texts of almost Biblical authority.
I now spend about 3 months each year in the USA and have discussed the gun question with many Americans. Like most Europeans I am amazed at the level of support of most for private gun ownership. I am also interested in the underlying legal position having studied American constitutional law at Glasgow University back in the early 1970s.
I have just returned from a month and a half in Texas. The "Lone Star" State is well known for its history of cowboys and guns. For some perverse reason, while in Texas, I read Richard North Paterson's book "Balance of Power", which argues strongly in favour of gun control in America. It paints a quite frightening picture of the financial might, deviousness and madness of the gun lobby. (It's interesting to note, that had the characters been Scots, it couldn't have been published here, due to our restrictive defamation law - Charlton Heston and the NRA would have sued). Foolishly, I mentioned in conversation with a Texan that I felt that Mr Paterson had put up a strong case for restrictions on gun ownership. I might as well have suggested that Osama Bin Laden deserved the Congressional Medal.
The Texan worship of the Second Amendment is typical of what you will find in many Southern and old cowboy western States. That big block of voter power is one of the reasons US politicians consistently fail to legislate to control weapons. But is it accurate in law to say that all Americans are entitled to own, and indeed use, guns?
The National Rifle Association will state that the Second Amendment is crystal clear and incapable of more than one interpretation. You may recall some years back, Charlton Heston the NRA then President, making his dramatic pro-guns speech on the Washington Mall - complete with rifle in his raised hand. At their press conference in Washington one week after the Newport massacre, the NRA predictably made no proposals to restrict the universal public access to firearms. They have not changed. In fact they want more guns and more killings. As always they cite the Second Amendment as making their pro gun approach the historically correct and only "true American" position. But as we lawyers know, any legal document, especially a constitutional one, can be construed in more than one way. In the case of the Second Amendment the words are :-
"A well regulated militia being necessary to the security of a free State, the right of the people to bear arms shall not be infringed"
Currently this is taken in American law to mean that any citizen can own guns. But is it as simple as that? This is a vital question because in the American system it is not necessarily the case that legal change comes from the legislature. The Supreme Court too can make ground-breaking alterations to US federal law. The nine Justices, the most powerful lawyers in the world, can change American law. They have done so on slavery, abortion, racial segregation and the death penalty - all of which seemed settled before the Court came along. They could do so again on guns.
If we look at the whole terms of the Second Amendment, we note that the linkage of the militia to the right to have a gun is made. The Amendment does not give an absolute and untrammelled right to all US citizens (including the mentally unstable) to have guns. Passed not long after the American colonies had fought the War of Independence with Britain, during which the local militia was a vital part of the nascent country's defences, it is not surprising that Congress saw the citizen army of "Minutemen" as necessary and desirable. But it would be perfectly possible within the framework of the Constitution for the Supreme Court to say, at one extreme, that only those who are members of the militia (now the National Guard) have the right to own guns. Short of that the Court could hold all manner of restrictions on gun ownership to be constitutional. The present composition of the Court is more liberal than has been the case for some years. Given the chance to rule on legislation and cases, they could well support a hitherto untried restrictive interpretation of the Second Amendment.
It is plain from his emotional appeals to America's voters, that President Obama is keen to try to do something about America's gun law. That he will be vigorously, and maybe viciously, opposed by the gun lobby (so wonderfully portrayed in Mr Paterson's novel) is beyond all doubt. In modern democracies, politicians often are more interested in their re-election than behaving in the public interest. Obama himself, re-elected for his second and final term as President, is now free of that strait-jacket. Supreme Court Judges are appointed (not elected) and so can rise above the self interest of politicians. Lawyers, in the shape of the American Supreme Court are, in Lincoln's words, the "last best hope" - in fact the only hope- here.
Alistair Bonnington is former principal solicitor to BBC Scotland and former Honoraray Professor of Law at Glasgow University
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