On Gun Ownership, Nothing Less Than Repeal of the 2nd Amendment Will Do

For human rights defenders, advocating for a constitutional amendment is the only consistent approach

Houston Gun Show at the George R Brown Convention Centre. Creative Commons licenced image

Not a week goes by, it seems, without a mass shooting in the USA.  The world’s oldest democracy also has the highest rate of gun related deaths in the developed world.  It’s a shocking public safety problem, and it’s caused by the fact that the Constitution of the Unitied States says that the government cannot curtail its citizens’ right to bear arms.

Many constitutional scholars say that the 2nd Amendment does not really mean that individuals can arm themselves. Rather, they say, it simply stops the Federal Government from preventing the formation of militia.  The authors of that text were, after all, mindful of tyrannies, dictatorships and unchecked state violence.

However, relatively recent Supreme Court rulings have interpreted the 2nd Amendment to mean that individuals have the right to own guns.

There is currently much talk about how the National Rifle Association effectively ensures that the U.S. Congress and State Legislatures do nothing to discourage or disincentivise the sale of weapons—even machine guns.  Laws that would limit the number of guns someone can own, or the types of weapon available for sale, are vigourously opposed. It’s even a struggle to introduce waiting periods and background checks, so hot-heads and convicted violent criminals are foiled in their attempts to buy weaponry.

Of course I am against the free flow of weapons around a community and I feel safer living in the United Kingdom than I would in the USA. Our goverments have introduced tougher gun control laws after each of the handful of mass shootings we have experienced in the past 30 years.

However, I am (shall we say) intellectually uneasy about curbs on gun ownership in the United States. The reason for this is to do with the way in which general human rights and civil liberties are created and protected.

The UK does not have a single written constitution.  But our basic rights are set out in the European Convention on Human Rights (and these are currently enforced in the UK at every level of government, thanks to the Human Rights Act 1998). In the USA, the constitution and it’s various amendments perform a similar function.  For example, the 1st Amendment guarantees religious freedom and free speech in a manner similar (though not exactly the same) to Articles 9 and 10 of the European Convention.

When it comes to freedom of expression and other human rights, I tend to argue strongly against any weakening of the basic protections enshrined in the over-arching, rights-protecting document. “These are the rules we have set for ourselves” I say, and we must stick by them: even if it means unpalatable, unpopular judgments. So, foreign criminals may avoid deportation because of the right to a family life; paedophiles may have aspects of their sentence reviewed when we would rather keep them permenantly locked up. And people can use their right to free speech to spout racist, hateful bile.

The thing is: in the USA, gun ownership is also equivalent to a human right—It is protected by the Constitution, right after freedom of religion and free speech!  So any law that is explicitly designed to weaken that right is analogous to a law designed to weaken other constitutionally protected activity.

If ever a Bill was introduced to the U.S. Congress which sought to weaken the right to free speech, I would oppose it on the basis that it undermines the Constitution.  These are the laws we have made for ourselves, I would say.

If I oppose laws that are explicitly written to weaken the 1st Amendment, how can I oppose laws that are explicitly written to weaken the 2nd Amendment? I cannot.

The only consistent way out of this morass is to support a constitutional amendment that repeals or re-writes the 2nd Amendment. The rules that the polity set for itself in the 18th Century are at odds with the way society works in the 21st Century.  It’s time for a change.

So for human rights defenders, perhaps advocating for a constitutional amendment is the only consistent way to approach the issue.

Of course, I appreciate that such an approach may not be practical in the currently political climate. America is in the midst of a generations-long culture war. The country is politically polarised and there is zero chance of such an amendment happening any time soon. So those seeking to make U.S. public spaces safer need more pragmatic tactics.  I just worry about whether an unfortunate by-product of those tactics will be to undermine other rights.

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