Guns in Britain and America

19 March 2008

Good news, for once, from Washington as the US Supreme Court looks likely to uphold a ruling that the District of Columbia’s blanket prohibition on owning handguns is unconstitutional. Frankly, people, I’m confused. That is to say, I’m confused that there’s ever been any confusion over the meaning of the Second Amendment. It all hinges upon the interpretation of the provision that:

"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."

As Slate’s Dahlia Lithwick says,

The constitutional question is whether that first clause limits the right to bear arms to a citizen militia, or whether the militia language represents a bit of constitutional phlegm standing between you and your full-throated right to bear arms.

Really? I should have thought it simple: how can you have a militia at all unless the people have the right to bear arms in the first place? Otherwise what will they fight with?  And doesn’t it seem unlikely that the Founding Fathers intended for guns to b kept in state arsenals? That being so isn’t it pretty obvious -to the point of being simple common sense – that the private ownership of guns shall not be infringed?

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Of course I’m not a lawyer and perhaps this is a simplistic view. But, to put it another way, given the lives, beliefs and times of the men who wrote the US constitution it might be a strange interpretation that permitted abortion but banned the private ownership of handguns. As I say, the militia has to come after gun possession not the other way round.

Alternatively, such a ruling would, in Ms Lithwick’s view, represent:

the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe.

Meanwhile, in Britain, our own crazy gun laws continue to apply. My brother, for instance, has just had to fork out £40 to have his shotgun certificate renewed. To be sure this only happens every five years, but it still seems a less than pressingly useful apportionment of police time. There’s an interview – to demonstrate you’re not a nutter – and several forms to be filled in and the whole process of renewal takes six weeks. Why?

It’s hard to see how a cost-benefit analysis would endorse this process. Last time I checked there wasn’t a real problem of chaps who like to pot rabbits or shoot pheasants going on maniac homicidal rampages in market towns across the country…. To the (limited*) extent that there’s a problem with gun crime in Britain I think we may assume that fellows in corduroy and tweed are not the problem.

*Very limited: there were only a few dozen shooting homicides last year. In a country of 60 million people. The hysteria in the press over gun crime is a) entirely predictable and b) typically overblown. The latest nonsense is a crack-down on air rifles. What next? Catapults and pea-shooters?

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Show comments
  • dearieme

    A Scots Lawyer once remarked to me that in Scots Law preambles carry weight; not so, he told me, in English Law. Since American law is a subset of English Law then “a well regulated Militia, being necessary to the security of a free State” is preesumably a preamble of no import, and “the right of the people to keep and bear Arms, shall not be infringed” is the business. This interpreattion would have the added advantage that you wouldn’t need to consider what the exact late 18th Century meaning was of “militia”, “free Sate” and so on.

  • duckingbeamers

    Right, I’m certain the Founders were in the great habit of putting words “of no import” into the Constitution just for the hell of it. Or better yet, out of a warped sense of fealty to English tradition. Whatever. Alex, you’ve inadvertently hit upon the nub of the question: if you say that the people have a right to bear arms only because of the need to provide for a well-regulated militia, then you’ve already limited the right to bear arms. In other words, you’ve essentially said that you can have a gun or arm or whatever, but only if it will be related for militia purposes. Then the question becomes, what arms would those be? Why would you absolutely need to have a handgun, when a rifle or a shotgun would do just fine (if not better) for a militia? And what about Paul Clement’s worry, that an unrestricted, individual rights view of the 2nd Amendment would severely restrict all gun regulation, even common-sense ones regarding the civilian ownership of machine guns? Lastly, it’s strange that you don’t notice the connection between Britain’s harsher gun laws and its substantially lower level of gun-related crimes. You might want to include that in your little “cost-benefit anlysis.” Indeed, as Alfred Blumstein, a criminologist at Carnegie Mellon, has noted, if you look at crime patterns in Western countries, America has roughly the same burglary and robbery rates. Only our homicide rates are much, much higher — and it’s the guns that do that.

  • Fred S.

    Dearieme, The preamble to the Constituion is actually the bit at the before the substantive bulk (hence the “pre-“), which begins “We, the People of the United States…”. Nothing in the Amendments themselves (and certainly not the opening clause of the single-sentence 2nd Amendment) would be considered a preamble. Also, preambles are given weight in the Common law, particularly as an expression of legislative objective. Duckingbeamers, “In other words, you’ve essentially said that you can have a gun or arm or whatever, but only if it will be related for militia purposes.” This point-of-view, lamentably common in left-wing circles, fundamentally misconstructs both the terms “well-regulated” and “militia”. “Well-regulated” simply means “skilfull” (as in well-trained in the use of firearms) and “militia” doesn’t necessarily carry any connotation of formality or government control (indeed, quite the opposite). A neigbourhood watch group would probably have more in common with the militias of old (the men who turned out at Lexington and Concord , for example), than the formal, government-run militias of today. The distinction betw. self-defence (or collective defence) and what you might consider a “militia purpose” (like fighting a pitched battle against foreign troops) simply did not exist. Furthermore, who are you to say which firearms would or would not be useful, even in a militia context? Easily-concelaed handguns might be highly effective in an urban, “dirty-war” situation. American crime is a compex phenomenon, and comparison with European countries with vastly different ethnic compositions is highly dubious. I have seen studies that say, for example, that by comparing the ethnically European population’s murder rate, the homicide rate in the United States drops from about 5 per 100,000 to about 2-3, putting the United States among some of the more murderous countries in Europe (e.g. Finland and Scotland), rather than well above them.

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