Blessed are ... America’s gun laws
The second amendment and Robb Elementary revisited.
Image: Salvador Ramos, perpetrator of the 2022 Uvalde massacre. https://creativecommons.org/licenses/by-sa/4.0.
It was, I think, at a reception being held by socialite Dorothy Parker that the hostess, feeling the painful need to do so, let off a rip-roaring fart that echoed around the room and brought all conversation to a mid-sentence standstill. She immediately turned upon the butler and exclaimed, “Jenkins, stop that!” to which the dutiful manservant replied, “Certainly, Madam. Which way did it go?” If it’s true, the humour clearly lies in the two meanings of to stop: to prevent; and to halt or apprehend.
The heroes in the teenager shooting spree at Robb Elementary School in Uvalde, Texas, in May 2022 were not teenagers. They were not the medics. They were not the dispatch switchboard operators. And they were not the police. The heroes were the ten and nine-year-old girls and boys who adhered to training protocols, obeyed their injured—and dead—teachers and did everything right that they had been taught. They kept unheard-of silence whilst in physical and emotional pain, surrounded by their dead classmates and schoolteachers, some bleeding to death and stifling their cries at their fellow students’ behest, lest their location be betrayed to their murderer. They lined themselves up as trained to do so in an L-form, away from the presumed direction of the killer. They did as their schoolmistress bade them. For over an hour in terrifying fear. They were exemplary pupils.
The police, on the whole, did not do what they had been taught, either because they made mistakes, or because they hadn’t been taught it. Only three of the 120 officers dispatched to the emergency would at the time have fulfilled the training requirements that Texas State now, as a result of the Uvalde tragedy, imposes on its police and other response officers. It is one thing to make repeated, almost ad nauseam, calls for gun controls and for more to be done to prevent the extremists who post their hate on line; but if, as is now manifestly apparent, little or nothing can be done to prevent such emergencies occurring, because of inadequate laws, because of the prioritisation of gunmakers’ profit over public safety, for want of political will, because it always happens to other people, then at least something should be feasible in terms of how to respond to an active shooter incident. And training the police is up there.
You might surmise that Texas is a fairly obvious candidate for a school shooting. Its image is one of gun-freedom, easy access even to high-powered war-grade weaponry, and a tradition of sects, cults and gunslinging swashbucklers. It’s a reputation shared by the likes of Illinois, New York, California, Oregon. But, even in the remotest parts of Nebraska, North Dakota and Montana, shooter threats, recriminations, and bullet-sprees are not unknown. Just like hostage situations, shooting incidents are rare enough to credibly posit that it’ll never happen to you; and they’re frequent enough that they can be said to occur with certainty, somewhere, not that far away. As I write these lines, I’m reading of four injuries from gun-shot wounds on a principal thoroughfare of my own Belgian capital this evening. Gun-shot injury is never very far away these days.
In 1985, I paid a visit to the Federal Bureau of Investigation headquarters in Washington, D.C. I remember a display board with a list of typical criminal acts, all the way from murder to shoplifting, each alongside a light that flashed with the statistical regularity of the actual commission of the crime. Theft flashed so that the spaces between flashes were as good as indiscernible. But even murder flashed often enough that a short stay in front of the board would register the crime much more than once. I cannot recall whether there was a separate category for mass shootings, but I guess there will be now.
The tour concluded in the shooting gallery, where a firearms specialist demonstrated to us visitors a rapid-fire gun, suitably protected and behind secure glass. He announced that he would fire the gun in three modes. First, a single shot, several times. Then, three-round volleys, rat-tat-tat, rat-tat-tat-style. Finally, he would empty the magazine. The single shots sounded as if someone had dropped a half-empty box of cardboard files. The volleys were loud and disconcerting. The emptying of the magazine left me cold. Whilst fellow tour-members—mostly men—expressed wows of wonderment, I couldn’t muster a single note of enthusiasm. It was, till now, the only time I ever saw a display of such firepower with my own bare eyes.
What I failed to understand as I quit the tour and headed back out into the Washington sunshine was what earthly use, besides on a battlefield, such a rapid-fire weapon could have in anything like well-meaning hands. Be that as it may, whatever my own concerns might be, they are not necessarily shared by America’s lawmakers, since such firearms are available to purchase virtually over the counter in many parts of that country. And, whether or not they can be purchased, they are in widespread circulation among persons who hold them other than by purchasing them, in the US as elsewhere.
The single biggest cause of death among children up to and including the age of 18 in the USA is motor accidents. Seventy-three per cent of those who die at that age do so as the result of a car crash. The single biggest other cause, unless “accidents” is taken as a collective group, is then homicide. Thirteen per cent of children who died in 2020 were murdered. Not all of them were murdered while at school, but the 19 who died at Uvalde’s Robb Elementary School, along with two of their teachers, were indeed at school when they were taken.
The ProPublica reports on the tragedy, and their reporting of blunders seemingly made by the officials whose job it was to protect these young members of Texas society make for sobering reading. What these reports don’t do is speculate on how the shooter himself could have been stopped, in the sense of prevented, but rather on what failures might have contributed to Mr Ramos’s not being stopped, in the sense of apprehended, earlier than an hour and a quarter after he’d entered the school premises to engage in his killing orgy. However, other agencies do speculate on such matters and it’s worth listening to such speculation, for, without it, one is left somewhat in the dark to know what paths of enquiry might be made, or might be in the course of being made. I have myself already waded in with the above comment about inadequate laws, prioritisation of gunmakers’ profit over public safety, a want of political will, it always happens to others.
Are the laws inadequate? Gun laws are all about the acquisition, possession, safekeeping, carrying and appropriate discharge of firearms. They’re not actually about preventing people being killed. Every time a shooter engages in a mass killing in the US, there is no question but that there is a law forbidding people from engaging in such conduct. There are laws against it. The argument by some members of society is that, by being too liberal and allowing the acquisition of firearms too easily, gun laws increase the chance of somebody who is unsuited to ownership of a firearm acquiring and misusing one. There are other ways to murder people, in respect of which the acquisition of a weapon is less stringently controlled. Knives, for instance. Poison could be reasonably easily acquired. Some teenagers are renowned for their ability to enter, take and use a motor vehicle, and some have even done so in order to commit murder. (I assisted the Federal Prosecutor in Brussels in endeavouring to extradite one from the UK one time. They failed, because he was already in Strangeways for a crime he’d committed in that country. We’ll get him in 20 years, when he’s 36.)
The response to the proliferation of firearms argument is that it’s not guns that kill people, it’s people who kill people. Interestingly, national service in Switzerland, which can be military or civil in nature, results in all ex-conscripts being retained as reservists in the event of an invasion of the country. When you drive along Swiss motorways, you may notice from time to time, especially in border areas, a series of slightly humped squares set in a pattern across the carriageway—they don’t impede traffic at all, you hear them rumble under your tyres, but they are in fact tank traps, and can be triggered to open and allow obstacles to rise out of the road surface to impede the progress of enemy armoured vehicles. This kind of preparedness is reflected also in the fact that Swiss reservists keep an army-issue rifle ready for deployment at home. It’s a privilege that does occasionally get abused; but there is nothing like the incidence of gun crime in Switzerland that there is in the USA, and proliferation would therefore not seem to be a great overwhelming argument, not without some detailed qualification, at least.
While it is true that gunmakers profit from sales of guns, their profit is non-existent unless people actually buy guns. If the proliferation argument holds true—that the more people own guns, the more gun crime there will be—then the people who hold to that view are presumably not the people who traditionally hasten to acquire a firearm in the wake of a well-publicised shooting spree. Fact is, mass shootings make gun sales shoot up. However, at least one major whistleblower[1] has written extensively explaining how gunmakers frequently lobby for, and procure, lax gun laws in the belief that lax laws help sales. What’s true is that the two coexist, but whether there’s a causal connection, I cannot say. What Busse says in his book is that the gun lobby actively endeavours to stymie legislative measures to restrict gun ownership. That is probably true.
The political will tends to be tempered by the second amendment constitutional argument. The oft-quoted gun-law provision in the US Constitution aside, the word militia figures five other times in the United States’ basic law.
Here’s the oft-quoted one:
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. (Constitution of the United States of America, second amendment.)
Here are the other five:
1-3: The Congress shall have Power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; (Constitution of the United States of America, article 1, section 8.)
4. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States … (Constitution of the United States of America, article 11, section 2.)
5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; … (Constitution of the United States of America, fifth amendment.)
Had the second amendment been drafted to read: “The right of the people to keep and bear Arms, shall not be infringed,” then the subsequent discourse on the subject, primarily emerging in the later 20th and 21st centuries, might have been restricted to whether anyone can bear a 50mm Howitzer. But the qualification (with its unfortunate punctuation) is nevertheless there: because of the need for a militia, and one that is well-regulated, at that.
A constitution is a base document that ought to be easy to read: it’s intended for educated but not expert eyes. The average Joe and Jane must be able to read it and understand it. I’m an average Joe, so what do I think it means?
It predicates the keeping (to have in one’s possession on a permanent basis, not temporarily) and the bearing (carrying on the person) of arms upon a reason given as being the need for a well-regulated militia (in order to promote the security of the state).
Arms are weapons, like guns, but also like swords, daggers, knives, cannon balls, hypersonic missiles, and so on. It is not in and of itself restricted just to firearms.
The word state likely means one of the, now, 50 states of the US, though elsewhere a clear distinction is made between the several states and the United States. Which of them is in fact meant here is a moot point but not one particularly needful of clarification since, whether it be the one or the other that is meant, it is there as a reason: people should be able to keep arms in order to offer security to the state as part of a militia. (The word troop is nevertheless restricted to one who serves in the Federal army.)
But, is people to mean anyone and everyone or the populace of a given state? In other words, is the right conferred on members of the general public or on the actual states where they live? People’s right or the people’s right? The former is a recasting of the phrase the right of people and the latter, that of the right of the people, and it is the latter that is in the text, but, that’s only a view, although, unlike other languages, the in English is much less used to designate a notional example of something—it means more an identified instance of it. The people must therefore, it is at least arguable, mean the populace as a body politic, and not folk generally.
Next: what, then, is a militia? Militia and martial are words akin to military but whose use has faded over the centuries. Now martial is only really encountered in the terms martial law or court martial. Militia means an organised group of soldiers, armed and ready to do battle, but otherwise stood down, not actually in combat: that’s a militia. By convention, it’s regarded as comprising citizens, rather than professional soldiers, which are more commonly referred to as an army. In fact, the US Constitution makes use of both terms and it is to be assumed they don’t mean the same thing. And the citizen army idea accords with the need for people to have their arms at home, and be capable of actually pointing the things at the right people.
However, keeping and bearing arms is not enough to organise a militia, as the British Home Guard would find when hostilities broke out in Europe in 1939. The shambles that is depicted of the Local Defence Volunteer Force, as it was originally known, in the TV programme Dad’s Army is not inaccurate. The US Congress provides a commentary on the Constitution and notes this fact, which may be overlooked: [i]n Founding-era America, citizen militias drawn from the local community existed to provide for the common defense, and standing armies of professional soldiers were viewed by some with suspicion.
Few, certainly not me, would seriously contend in today’s US that its standing army of professional soldiers is viewed with suspicion. But at the time, there it was:
[T]he Constitution gave Congress power to establish and fund an army, as well as authority to organize, arm, discipline, and call forth the militia in certain circumstances (while reserving to the states authority over appointment of militia officers and training). The motivation for these provisions appears to have been recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defence. However, despite structural limitations such as a two-year limit on army appropriations and certain militia reservations to the states, fears remained during the ratification debates that these provisions of the Constitution gave too much power to the federal government and were dangerous to liberty.
If the responsibilities undertaken by the US Army can be taken in the modern age to be free from scrutiny as suspicious and if a local militia can be taken no longer to be the most natural defence of a free country (see: The Federalist no. 29), the whole precept on which the second amendment was even enacted is by now frustrated since, patently, such militias as lawfully exist in the US (the National Guard and State defence forces; in the UK, the Territorial Army) are composed of persons to whom weaponry is provided, for training and exercise and, if necessary, deployment purposes.
The provision is prudent enough to set out why it’s there at all: it is there so that the several states and, if required, the United States should have to hand a suitably trained militia to put down insurrections and repel invasions. While it may be argued that the second amendment allows citizens to keep arms at home and train in their use, it is not the right to do this that is enshrined in the Constitution: it is the right to keep and bear arms within the context of a militia. That right may not be infringed. And, I argue, that right would not be infringed if private handgun ownership were to be outlawed overnight.
The minimum age to sign up for the National Guard is 17. There will be an upper age limit and set of conditions to be eligible for National Guard service. Anyone over that age limit is passed over if there is a muster of troops. If those older members of society don’t therefore need to know how to shoot, they at least can surrender their guns, as can anyone in an excepted category (i.e. disbarred from National Guard service) and those who need to bear arms for the National Guard will still possess all the requisite skills provided for in article 1, section 8, by being organised, armed and disciplined, without their needing to be armed at home.
The second amendment was formulated owing to the fear of danger from outside, from Great Britain in particular, and from inside, from the Federal, as opposed to the several, states. What the provision does not contemplate is any danger posed by the very possession and bearing of the arms in question, a danger that is now eminently clear and present. By adding the qualification regarding militias, however, as the reason and not as a reason, it has to be assumed that, whilst it would be wrong to assert that allowing people to have a gun at home in case they are burgled is thereby prohibited, it would be right to assert that keeping and bearing a gun at home is a right that should not be infringed provided the purpose for doing so is to serve in the militia, or National Guard. If the purpose for keeping and bearing arms is not to serve in the National Guard, it is a right that can be infringed. So, why isn’t it?
My purpose is not here to pretend any expertise in the constitutional law of the US. Even those who are experts in the US’s constitution are unable to reach a consensus on how to construe the second amendment. All I have done here is to take the text as written, the words as applied elsewhere in the self-same document, and ask whether the constructions so classically placed upon the provision make complete sense as argued in the American courts. Clearly, constitutional rights should never be impinged upon whimsically, on a supposed reasoning that is rashly pursued as being the solution to some other problem. However, what is worth examining is whether a solution to a problem might be explored in such a manner as does not, on the wording of the provision in question, actually impinge on any rights whatsoever. With today’s Supreme Court actually pursuing a much more original intent approach to the US constitution, it might perhaps be hoped that they will ultimately be given cause to examine what is meant by words such as arms, people, bear and militia.
Finally, I wonder whether the other extreme is perhaps not, to some, more persuasive: issue nine- and ten-year-old American schoolchildren with semi-automatic pistols so that they’re all ready and waiting for the next teenage shooter to dare to enter class 112. Or is their innocence just too precious?
So, if you pass the parents weeping
Of the young ones who have died,
Take them to your warmth and keeping,
For blessed are the tears they cried,
And many were the years they tried,
Take them to that valley wide,
And let their souls be pacified.
[1] Gunfight by Ryan Busse.