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Second Amendment and the long history of gun laws in the US

Gun ownership was first enshrined in the American Constitution under the Second Amendment. The ability to bear arms is intertwined with the Americans' conceptualisation of basic freedoms.

gun violence in US, gun violence in america, gun violence in texas, second amendment, us constitution, maryland shooting, Uvalde shooting, school shooting incident, America news, US news, world news, current affairs, indian expressAs the shooting at Texas school raises questions about the gun laws in the country, a look at the history of the Second Amendment to the United States Constitution.

The former president of the United States, Barack Obama, on being asked about gun control would always stress that he did not intend to confiscate guns from law-abiding citizens and that he appreciated the deep cultural traditions that predicated gun ownership in America. At a CNN Townhall in 2016, he even remarked that if he were living in the rural US with no neighbours or police for miles, he would want a gun to protect himself and his family.

Obama recognised that while most Americans support bans on semi-automatic rifles and tighter background checks, their ability to bear arms is intertwined with their conceptualisation of basic freedoms. Gun ownership was first enshrined in the American Constitution under the Second Amendment.

As the shooting at Texas school raises questions about the gun laws in the country, a look at the history of the Second Amendment to the United States Constitution.

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The history of the Second Amendment

In 1776, back when America was still a British colony, gun ownership was pervasive across the 13 founding states. Citizens, burdened by British rule, had already begun to accumulate arms with over half the population owning guns – more than the number of people who owned books. State arsenals were open to the public and many of them were used during battles against the British forces.

After eventually winning independence in 1783, America was split into two opposing groups, namely, the Federalists and the Anti-Federalists. While drafting the Constitution five years later, the Founding Fathers had to consider the interests of both groups, forging a compromise between the former which wanted a strong national republic and the latter, which wanted small, localised governments. The Federalists thought that a strong standing army would protect the freedoms enshrined in the Constitution while the Anti-Federalists didn’t trust a single body in terms of oversight and wanted to empower the people to guarantee that the state would never be more powerful than its subjects.

In order to appease both groups, the Bill of Rights included a provision known as the Second Amendment. The clause stipulated that the right to bear arms was an auxiliary right that supported the natural rights to self-defence, resistance to oppression and defence of the state. One of the Founding Fathers, James Madison, explained that a federal army could be kept in check by state militias and that “the existence of subordinate governments … forms a barrier against the enterprises of ambition.”

At the time, the Second Amendment wasn’t seen as a way for individuals to own guns, but rather — as Alexander Hamilton notes in the Federalist Papers — as a way to enable citizens to become part of a collective system of governance. It also had nothing to do with hunting, as many believe, with the late American historian Gary Wills writing that “one does not bear arms against a rabbit.”

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Despite guns being legal, they were heavily regulated for most of America’s history as law professor Adam Winkler describes in his book Gunfight. He writes that laws banning the carrying of concealed weapons existed in most states by the 1820s and many institutions mandated that gun carriers leave their weapons at the door.

In 1893, the Governor of Texas even argued that the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding American.” Although laws restricting gun ownership were often challenged, they were hardly ever struck down by the courts or the legislature.

Things changed with the industrial revolution and after Lee Harvey Oswald assassinated President John Kennedy in 1963, the citizenry at large began calling for tighter restrictions. Five days after Kennedy was assassinated, Thomas Dodd, a Democratic senator from Connecticut, introduced legislation restricting mail order sales of shotguns and rifles, thereby sparking the beginning of the modern debate over gun ownership. This debate primarily concerns who in question the right to bear arms pertains to.

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Who owns and uses guns?

Back when the Second Amendment was drafted, laws rarely allowed free Blacks to own weapons. Guns weren’t just about resisting tyranny, they were also about protecting property, which in the south referred to slaves. Slave owners owned twice as many guns as the general population and southern militias often used them to prevent slaves from rebelling.

In a conversation with indianexpress.com, Hong Kong University professor Noah Shusterman explains that instead of legalising firearms, countries like France opted for universal conscription as a means for civilians to resist state oversight.

Unlike in the US, where African Americans weren’t considered citizens, and therefore weren’t expected to possess the rights enshrined under the Constitution, in France and England, there was no way of explicitly preventing so-called problem groups, like the poor or Roman Catholics, from enjoying the same rights as the rest of the population. Therefore, those countries did not adopt gun ownership because they feared that the guns would end up in the wrong hands.

According to Shusterman, America, unlike other countries, was able to both empower its citizenry while simultaneously maintaining the social hierarchy in which white males reigned supreme. One of the first steps towards doing that was legalising gun ownership for white people, while restricting it for Blacks.

However in the 1960s, the rising Civil Rights Movement began advocating for armed resistance.

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From Malcolm X to the Black Panther Party, Black nationalists favoured arming their supporters as a way to overthrow racial segregation. Gun ownership as a tool for racial levelling was so pervasive that the Ku Klux Klan began as a gun control organisation. In response to Black leaders embracing guns, the federal government began restricting their sales. However racial tensions continued to simmer and by 1970, white Americans had readopted the belief that guns would protect them against violent minorities.

Around that time, guns once again became the poster child for the white cause than it was for Black nationalists, a trend that continues till today. In a 2017 paper, a team of University of Kansas researchers found that the correlation between owning a gun and presidential vote choice increased markedly from 1972 to 2012. Republicans, who tend to be primarily white, increasingly favour gun ownership, while Democrats, who count significant minority support, tend to want more restrictions.

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In a paper for George Washington University, Donald Braman and Dan M. Kahan, expand upon this idea, stating that for Republicans, guns connote “the perpetuation of illicit social hierarchies, the elevation of force over reason, and the expression of collective indifference to the wellbeing of strangers.”

The United States has the highest number of guns per capita worldwide with 120.5 firearms per 100 residents, namely over one gun per person on average.The rate among Republicans is over twice that of Democrats, whose rate of ownership has markedly declined since the 1990s.

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A report from Everytown for Gun safety identified a direct correlation between states with weak gun laws and higher rates of firearm mortality.

Eight states — California, Hawaii, New York, Massachusetts, Connecticut, Illinois, Maryland and New Jersey — have the strictest gun laws and the lowest rates of gun violence.

Thirteen states — Kansas, Alaska, Kentucky, Missouri, New Hampshire, Arizona, Oklahoma, Wyoming, South Dakota, Arkansas, Montana, Idaho and Mississippi — are categorised as national failures for having the weakest gun laws and the highest rates of gun violence.

Apart from Arizona which is a swing state, the states with stricter gun laws are Democratic strongholds while the ones with the weakest laws are firmly Republican.

In order to understand why gun ownership became a matter of political identity, Matthew Lacombe, as part of his PhD dissertation at Northwestern University, looked through thousands of campaigns geared towards promoting Second Amendment rights. He concluded that editorials published by the National Rifle Association (NRA) were filled with language designed to correlate patriotism with gun ownership.

The NRA

Lacombe’s conclusion defies intuition, chiefly because the Second Amendment was designed as a check against central oversight. As Shusterman argues, in the 1700s, professional soldiers were seen as mercenaries while militias were associated with patriotism. Today, the people who tend to support the Second Amendment are the same people who consider it unpatriotic to not support the US armed forces.

So, if guns are no longer needed to oppose the country’s standing army, why are they still such an integral part of American life?

The answer, for most Democrats at least, is the NRA, a gun-rights organisation that has spent hundreds of millions of dollars supporting Republican candidates that oppose tighter gun laws. However, despite its right-wing credentials, the NRA actually started out as an organisation aimed at teaching marksmanship to city-dwelling Union soldiers during the Civil War. The premise was to create a new generation of marksmen who would be able to represent their country during wartime unlike the current Yankee army which fired 1000 rounds for every one that hit a Confederate soldier.

The NRA used to work with the federal government to limit the traffic of guns, held classes on the safe and proper use of firearms and, following Kennedy’s assassination, even supported Congress’ decision to pass stricter gun laws.

All of that changed once the civil rights movement began picking up steam in the 1960s and ’70s, notably, when the 1968 Gun Control Act imposed a licensing system on the purchase of firearms. Facing growing irrelevance, in 1975, the NRA capitalised on the racial divide, formed its lobbying arm and just two years later, ousted much of its old leadership, replacing them with Second Amendment firebrands.

To understand just how powerful the NRA is, consider one example.

In 2012, 20-year-old Adam Lanza shot and killed 26 people, mostly children, at the Sandy Hook Elementary School in Newtown, Texas. Before leaving office, Obama invoked the incident, claiming that the day he went to meet the families of the victims was the toughest day of his Presidency. He said it was the only time in eight years that he had seen Secret Service agents cry at an event.

One year after the shooting, Democratic senator for West Virginia Joe Manchin partnered with Republican senator Pat Toomey to introduce a bill that would have strengthened background checks on gun ownership. Manchin was not a stereotypical liberal hippie and in 2012, had even been endorsed by the NRA.

He was also pragmatic about the cultural divide over the issue. He recounted one particular conversation with New York Democrat Chuck Schumer in which Schumer said, “Joe, I didn’t know anybody who owned a gun when I grew up.” Manchin replied, “Chuck, I didn’t know anybody who didn’t own a gun.”

To bridge that gap, they proposed involving the NRA in the conversation and proceeded to work with the group, which at the time, was open to the idea of background checks. The proposal was also wildly popular with the public, with a CBS News poll finding that 92 per cent of Americans favoured universal background checks. Republican pollster Frank Luntz even found that 74 per cent of NRA members supported the policy.

However, one week later, around 250,000-gun sympathisers received an email from another advocacy group, the Gun Owners of America, warning that the NRA was working with Democrats to undermine the Second Amendment. Days later the NRA sent out its own email opposing the proposed policy and by the end of the week, the bill was defeated on the Senate floor.

People often think that the NRA’s popularity stems from its financial contribution to lawmakers’ campaigns. However, in 2017, while the NRA spent USD 4.1 million on lobbying, the dairy industry spent 4.4 million during the same period. This does not include contributions to Super PACs (which do not have to be disclosed) but still demonstrates how the significance of the group is rooted in far more than just money.

Lacombe, who wrote his thesis on gun ownership, later published a book called Firepower in which he states that the NRA’s “primary source of power is related to the political dedication, activism and intensity of its members.” Supporting guns “has become part of what it means to be a Republican for a lot of people,” says Lacombe, and “even if the NRA were to close up shop tomorrow, that wouldn’t go away.”

What’s next for gun control legislation

According to data compiled by the National Opinion Research Center, between 1977 and 2012, the percentage of American households possessing one or more guns declined by 36 per cent. Tom Smith, director of the organisation, said this is because people mostly keep firearms for hunting and/or personal protection. As the popularity of hunting wanes, and crime rates decrease, so do the number of people who own guns.

Unfortunately for gun control advocates, even with this shift, and with a Democratic majority in the House and Senate, the party is unlikely to have the 60 Senate votes needed to pass meaningful legislation on the issue. That then leaves the courts.

Until 2008, the Supreme Court had never directly ruled on the right to own guns outside of the context of military service. That changed with the landmark decision issued by the court in The District of Columbia v. Heller.

To summarise the case, the Washington DC City Council had passed a law banning gun ownership and when police officer Dick Heller applied for a license to carry a gun outside of work, his request was rejected. Heller subsequently filed a complaint stating that his Second Amendment rights were being infringed upon and in a 5-4 decision, the Supreme Court ruled in his favour.

The case concerned the textual interpretation of the Second Amendment clause which stated 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.”

Justice Scalia, in the majority opinion, argued that the need for a well-ordered militia was only an introductory clause indicating the Amendment’s purpose and did not limit the right to bear arms guaranteed in the Amendment’s operative clause. Simply, owning a gun in order to form a militia was one example of how the right could be exercised but not the only one according to the wording of the Constitution.

However, because DC is a federal territory, the court’s ruling only applied to federal districts. That changed in 2010, when Otis McDonald filed a case against the city of Chicago for its restrictive laws surrounding the possession of handguns. Like with Heller, McDonald won the case and, following the ruling, any city or state that had restrictive gun policies had to rewrite their laws.

In both cases however, the courts stipulated that the right to bear arms is not unlimited and placed restrictions on who can buy guns and where they can be carried. For example, a convicted felon cannot own a gun, and firearms are banned in certain schools and government institutions.

Despite those exemptions, there are no federal laws banning semi-automatic assault weapons or military grade weapons. Moreover, while some criminals buy guns legally, others obtain them through illegal channels, second hand gun shows or through a friend or relative.

Challenges at a district level continue to be heard by courts, who tend to apply what Federal Appellate Judge Stephen Higginson describes as a “two-step analytic framework.” Under this framework, gun regulations that impose serious restrictions on “core” Second Amendment rights, namely rights as they pertain to law abiding citizens, will typically be shut down, while less severe restrictions are likely to be upheld.

That benchmark will be tested when the Supreme Court rules on The New York State Rifle and Pistol Association Inc v. Bruen. The case involves New York state’s handgun licensing law, which has been in place since 1913, and requires people wishing to carry handguns in public to demonstrate “proper cause” for doing so.

This is the first gun ownership case heard by the Supreme Court in over a decade, and also, the first gun rights case to be heard by the six-member Conservative majority. For those hoping for more restrictions on gun ownership, there are two sobering points to consider.

The first is that now, more than ever, gun ownership is conflated with a certain political identity, and that identity is increasingly polarised from its counterpart. The second is that, while the idea of public militias seem to stem from a bygone era, the protesters that stormed the nation’s Capital in January 2021, resembled more of a popular militia than the country has seen since the Civil War.

Combined with the overwhelming Conservative majority in the Court, Shusterman concludes, “it’s harder to have gun control laws that it was before, and given the way America is, it’s probably only going to get harder from now onwards.”

First published on: 11-06-2022 at 01:09:05 pm
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