The Second Amendment

The opening item in the local news this morning was a police-involved shooting in the Bronx.  One man was killed, and according to an NYPD spokesperson officers fired thirty-one shots, “of which several hit the suspect.”  Several out of thirty-one doesn’t sound like an impressive performance, and it puts statements by the likes of Donald Trump that ‘if only more people in the Orlando nightclub (or in the Paris concert hall for that matter) had been carrying guns, there would have been less carnage’ in perspective.  If highly trained police officers misfire between 80% and 90% of the time, one can only imagine the damage random gun-carrying civilians would do.  Moreover, Trump ‘forgets’ to mention that there was an armed guard at the Pulse, who couldn’t take down the terrorist.  The news continued with an interview with a Republican US Senator, who declared that “this is not about guns but about terrorism.”  It sounded like a refurbished version of an old NRA slogan, which now says: Guns don’t kill, terrorists do.  The notion that terrorists with guns kill easier than terrorists without guns escapes these geniuses.

The real problem is the 2nd Amendment, or rather its interpretation by the American right. It was added to the Constitution in 1789, and says: “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.” For two centuries legal scholars and politicians have debated what the founders and framers intended when they wrote these somewhat mysterious words.  Clearly it was not to protect the rights of the squirrel-hunters in Bernie Sanders’s Vermont, and therefore the arguments focused on whether only citizens who are part of an organized militia have the right to bear arms, or if it is an individual right of every citizen.  The matter was settled by the Supreme Court in 2008 with the Heller-decision in favor of an individual right, the crowning event of a process that started during the Reagan administration.  In this case the Court was probably right.  Both the Federalists and the anti-Federalists were very concerned about the potential power of a ‘standing army,’ and believed that an armed population would be a counterweight to that threat.

Although most of the debate is still about militia versus individual right, it seems that there is a much stronger argument against the 2nd Amendment.  As the Bundys c.s. have amply demonstrated, individual citizens banding together, even when armed with AR-15s, have no chance against the local police and the FBI, let alone the National Guard and the US Army. So the original intention of the amendment has become obsolete, and it should be removed from the US Constitution.

That is not about to happen, but as long as there is a 2nd Amendment, even interpreted as an individual right, there is no reason why gun ownership cannot be regulated without infringing on that right, as many cities and a number of states have shown.  The unwillingness of politicians in DC to regulate is not of a legal nature, but only shows that they are in the pockets of the NRA.

Next week, in the wake of the Orlando massacre, the US Senate will vote on four window-dressing measures that would limit the ability of suspected potential terrorists to buy guns.  Two are proposed by Democrats and two by Republicans, so it is to be expected that none will pass.

Hugo Kijne

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