Eyre Lines

Dear America,

I find I am again horrified at an episode of mass violence using firearms in the USA, and my prayers go out to those who have been injured or who are mourning family or friends.

The trouble is that word “again”. It seems to be happening every week or so. Surely, by now, the mood must be “enough is enough; we have to do something about this”? Look, we are not all that different from people in the States over here, and I can recall three instances of mass shootings, in 1987 (Hungerford), 1996 (Dunblane) and 2010 (Cumbria). Two of those also involved schools, which I think gives the lie to the idea that the phenomenon in the States targets schools because they tend to be gun free zones. The Hungerford and Dunblane shooters could have chosen almost anywhere with confidence that it would be gun-free, but chose schools anyhow.

Yes, I know we have a significantly smaller population, about a sixth of that in the States. This might mean that we might have expected instead of three shootings in 28 years, about 18 if we had had an equal population.

Not one a week, as it seems is the case with you at present.

“But”, I hear, “We’re a very different country”. I’m not all that convinced by this argument. Certainly there’s a far larger population of people not of British origin which you’ve accumulated over the last 250 years, but we share a language and, frankly, a large amount of our culture (as US domination of English speaking media is huge), and, of course, the bases of our legal systems.

Now, there’s the rub, potentially. We don’t have a written constitution, at least not one which can supersede legislation and see it struck down (we do have a constitution of sorts, but it’s partly in legislation no more protected than any other legislation and partly in longstanding custom – and most of that longstanding custom we exported along with the early settlers).

This article highlights the problem, the Second Amendment. For anyone reading this who does not have it burned into their consciousness already, it 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.”

The article I link to quite reasonably asks what contribution is being made to the establishment or maintenance of a “well regulated militia” by the current state of US law, which allows more or less any individual to own a gun, and often to carry it around in public, sometimes even concealed. As far as I can see, there are no militias (except a few self-described groups on the extreme lunatic fringe, many of whom also deny being citizens), let alone well regulated ones.

I could readily have seen, on the basis of the strict wording of the amendment, the limitation of possession of all firearms to people who were members in good standing of a formally constituted militia, with (inter alia) rules as to the abilities of those allowed to bear arms, their character and stability, and their conduct while in that position. This would be a situation rather analagous to that in Switzerland, in which all men (at least for the moment, just men) are called up, do national service and are then members of the reserve – and they hold weapons, which can be denied them for good cause (see the previous sentence). The authors of that article don’t go quite that far. Unfortunately, they probably also underestimate the power of the Supreme Court decision in DC -v- Heller.

Now, I know that a future Supreme Court could in theory overturn this. However, Supreme Courts have been historically reluctant to go entirely against stated previous decisions of the same court, usually looking to distinguish the situation in front of them so that the previous decision can at least arguably still be regarded as correct. That decision includes the words “The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.” This could well be fatal to any future argument that only the possession of arms in furtherance of membership of a militia (and a well-regulated one at that) should be protected.

The court decision also includes the words “The “militia” comprised all males physically capable of acting in concert for the common defense.”  This, of course, completely negates any suggestion that the class of people (as long as they are male and physically capable) cannot be restricted – even, it would seem, by the requirement that the militia be “well regulated”, something which the court seems to have conveniently forgotten. They also stated  “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. ” This was to justify their decision that in particular handguns, possession of which had previously been prohibited in certain circumstances, were legitimate weapons of self defence, giving it a plausible link back to the first (militia) clause of the amendment.

There were a few positive elements – the court was at pains to state that the decision did not permit machine guns, and I think that can colourably be made to include all automatic and semi-automatic weapons (being new weapons not available at the time the amendment was drafted). As did the UK government after Hungerford, I think an immediate blanket ban on the private possession of these is probably not within the Heller decision.

However, it is also interesting to note the Court’s interpretation of “militia” as being all able bodied men. Actually, this was not the way a militia was constituted in the 18th century, either in the fledgling USA (except very briefly immediately prior to the introduction of the amendment) or in the British law previously in force. Militias were volunteer organisations raised by and led by prominent local men; they were entirely capable of (and did) exclude men they did not think of as of good character, and they were organised and had rules – which is what I am confident those drafting the amendment had in mind by using the words “well regulated”. While yes, they did welcome people bringing their own weapons where they had weapons which would be of use in a military action, these were in general not handguns, which were not particularly useful in the kind of military engagement of the day.

The preservation of (as the court saw it) a right of self defence. Much consideration seems to have been given to the English Bill of Rights of 1689, which was seen as restoring the right of Protestants to bear arms inter alia for their own defence which had been taken away by James II, crucially while allowing Catholics to remain armed. Throughout the history of interpretation of this in England, it has stressed  the wording in the Bill of Rights “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.” Note the words “as allowed by law”, which were consistently considered to allow government to restrict the possession and use of arms by individuals and groups which it considered inimical to good order, and also the words “suitable to their conditions”, which was code for “It’s fine for the aristocracy and landed gentry, but you’re in trouble if you’re a peasant”.

Of course, in the UK, Parliament is never bound by any previous Act of Parliament, and the “right” to bear arms has been reduced by stages, particularly following Hungerford and Dunblane, to a very restricted one; non-automatic rifles and shotguns for sporting use only, kept under secure lock and key and owned only by those who get a licence, which is not all that readily come by for anyone not owning significant land; handguns only in licensed gun clubs. That is where a right to bear arms “as allowed by law” has ended up in the UK…

So, while a new Supreme Court might not want to overturn the previous court’s statement of law, it seems to me that they might determine that the court in DC -v- Heller misdirected itself on the facts. Militias were not what they thought they were, and neither was the pre-existing right to bear arms independent of restriction by law. The lack of any mention of “well regulated” is also something which could lead to a finding of self-misdirection, it seems to me.

I do not really see good reason why the USA should not aim at moving towards a similar level of restriction to ours, but a first step would, I think, be an immediate ban on automatic and semi-automatic weapons. Australia has, after all, managed a similar transition, and they too are a recovering frontier nation… This might be possible with a more liberal minded Supreme Court, it might require another amendment to the Constitution – but amendments have been passed before this with rather less concrete evidence of continuing harm to the population. Amendments have been passed removing earlier bad amendments. Don’t tell me this could never happen with the Second Amendment; it hasn’t been tried yet.

An immediate response to this tends to be “this would remove the guns from all the law abiding citizens and leave the criminals free to use them at will”. This is, of course, true, but it is the situation in England (and many other countries), and by and large English criminals do not use guns. The reason is that the penalties for possession and use of a gun are far greater than those for crimes committed without these, and on the whole, our criminals are not completely stupid. That may, of course, not work in the States, given that the penalties for relatively trivial offences (particularly connected with drugs) are draconian – but a revision of US sentencing policy would be no bad thing for a number of other reasons, not least to provide a perceptible difference in tariff. I can also see the thinking running “I’m going to get locked up for life for possession of this kilo of drugs anyhow, so I may as well be armed and shoot a few people to try to avoid capture, because it won’t make any difference”.

I also see very little evidence that an armed citizenry provides any sensible deterrent to criminals. Indeed this article outlines some recent research which demonstrates that more guns means more crime, not less, among other things. This one undermines the unscientific survey which is commonly used as an argument that guns prevent large amounts of crime. It also focuses a little on the number of accidents which occur, often fatally, due to guns in homes.

Just in passing, please don’t way “guns don’t kill people, people kill people”. Weapons of mass destruction don’t kill people, people using weapons of mass destruction kill people, but we can still get very upset at the concept of mere possession of such weapons. Unless it’s by us, of course. The thing is, the term “mass destruction” highlights the problem – they let you kill a whole load of people more easily.

So do guns.

They also let you kill people at a distance, removing some of the visceral revulsion which most of us feel about killing hand to hand.

So do guns.

Similarly, don’t tell me this is just a mental health problem, unless you’re going to explain to me why people in the States are so much crazier than those anywhere else. Yes, substantial good can be done by a mental health system which identifies threats and acts to manage at risk people, but as that article comments, the mentally ill aren’t a significantly greater threat than the notionally normal (and around one in four will at some point suffer some form of mental illness from depression upward); as it also highlights, if you have someone with this kind of mindset, guns let them do a lot more damage.

Well, there may be an answer or two. Firstly, the version of US culture peddled by TV and movies is a very violent one, in which by and large problems are solved by violence. You can watch whole series of an UK police procedural and never see anyone getting shot; the same cannot be said for the US equivalent, one of which (Chicago PD) is advertised here with the phrase “They have the right to remain violent”. There would seem to be an addiction to what Rene Girard called “the myth of redemptive violence”. This is an “eye for an eye” world at the very least (often glorifying more than just equivalent violence). Girard suggested that a prominent understanding of the crucifixion should be the rejection by God of all such concepts; Jesus is “the last scapegoat”, and no more should be contemplated. Addictions can be treated; I might suggest a communal twelve step programme starting “we are powerless over violence and our lives have become unmanageable”.

Secondly, and connected to that, the States is the one place I know of where the term “gun nut” is of widespread application. Let’s face it, that’s where the term comes from. An Australian comedian has recently commented, rightly I think, that the true reason why gun control is resisted boils down to “F*** off, I like guns”. Why is this? It seems somehow bound up in ideas of masculinity and power; almost all the mass shootings seem to be by men who feel disempowered, and it would seem that guns make them feel powerful again.

I am no more sympathetic to people who want to wave their penis substitutes around in public than I am to those who want to do the same with the real thing.

Both categories should, in my view, be locked up and given intensive therapy until cured. Let’s face it, that’s the attitude we take to someone who says “F*** off, I like crystal meth”.

Consider the path to gun control as the path to rehabilitation, preferably starting with an extended detox. Until that happens, yes, you’re communally addicts, and that is indeed a form of mental illness.