Last month, 19 schoolchildren and two teachers were fatally shot in Uvalde, a small town in Texas. Reporting on the angry reactions in America, a BBC newsreader referred to the constitutional right of Americans to bear arms. She should not have done so. While it is no doubt true that the majority of Americans, with the enthusiastic support of the National Rifle Association and the makers and sellers of guns, do believe they have such a right, the issue remains a bitterly contested one.
What is not contested is that America is the world's largest armoury. Back in 1993, as many as 57% of Americans owned guns. That figure may well be higher today. Of course, there have always been Federal laws over the selling and owning of guns, but they have done nothing to reduce the scale of gunshot deaths in America. In 2015, for example, 13,303 people died from firearms injuries. And guns remain the biggest cause of death among American children.
Why is it that the US, that icon of democracy, has become such a lethal country? The answer lies in the Second Amendment to the constitution. The First Amendment had been about freedom. Freedom of speech, the press and religion. The Second Amendment was about security. The founding fathers knew that their new country had no regular or standing army, and some at least were against creating one, believing it could easily become a source of tyrannical power in the land. Yet, across the Atlantic Ocean, the war-torn world of the 1790s was a dangerous place. How could America be protected?
The answer was the creation of a militia – a people's army. So the Second Amendment reads as follows: 'A well-regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed'. Article 1, section 8, of the American constitution includes among the functions of the federal government, the organising, arming and discipling of the militia to execute the 'Laws of the Union, suppress Insurrections and repel Invasions'. The Second Amendment seems to be little more than a reinforcement of the original article. In both formulations, it is striking how the militia is the heart of the matter.
Today, however, America's politicians, lawyers, commentators, and the public in general believe the Second Amendment is about something entirely different: the right of Americans to keep and bear arms. This is the meaning that is automatically and slavishly reiterated when the issue of guns in America is raised in any form. But the truth is that this interpretation became the orthodox one only in the very recent past.
For over 200 years, the American legal system rejected the idea that the Second Amendment guaranteed the right of individual Americans to bear arms. It was only in 2008 that things changed. It was then that the Supreme Court voted 5-4 to overturn two centuries of precedent by endorsing the opinion of Judge Antonin Scalia who had argued in favour of the new orthodoxy concerning the right to bear arms. The militia as it were had been disbanded.
Just how revolutionary the change was is suggested by a comment made by Chief Justice Warren Burger in 1991. He stated that the gun lobby's chosen interpretation of the Second Amendment 'is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defence of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires'.
How then had such a revolutionary change come about? Largely because of a well-organised and well-funded campaign by the National Rifle Association enthusiastically supported by gun-owners and gun-makers. Launched in the 1970s, the campaign was a success. State assembly after state assembly began to legislate in favour of the individual's right to keep and bear arms. Crucial was the appointment of John Ashcroft as the US's Attorney-General in 2001. Ashcroft was a member of the NRA and under him the Department of Justice changed its position and adopted that of the rifle association. There was a kind of inevitability that the Supreme Court would eventually fall into line and subscribe to Judge Scalia's interpretation of the Second Amendment.
Just how had Scalia persuaded four of his fellow judges to accept his position? Scalia had quickly emerged as a deeply conservative legal voice. He utterly condemned what he saw as politically liberal attempts to regard the American constitution as evolving alongside changes in society at large. All that mattered were the intentions of the founding fathers. If these were in doubt then the original public meaning of the words on the page had to be relied upon. That became Scalia's approach, and it was adopted by conservatives across the country.
Yet there were problems with Scalia's position. For example, on the central issue of the relationship between the Amendment's two clauses – the state's security requiring a well-regulated militia, and the right of the people to keep and bear arms – he has almost nothing to say. Again, an element of intellectual incoherence emerges in his conclusion when he writes: 'nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms'. But who is to decide where exactly do such denials of the individual's right to keep and bear arms reach an end?
In any event, in today's world we see the slow but sure ebbing away of Scalia's reservations. Guns are now being carried across America in government buildings as well as in schools and on university campuses. Guns are now allowed in psychiatric hospitals in Texas. Deadly mass shootings occur repeatedly in workplaces, schools and colleges, cinemas – in fact anywhere people gather.
recently reported that there were 20 mass shootings elsewhere in the US in the days after the Uvalde massacre. There are all kinds of reasons for the lethal nature of America's gun culture. It would be absurd to blame it all on Scalia's reinterpretation of the Second Amendment. But the impact of his ruling on gun controls is surely a significant factor.
A year or two ago, the New York Times
reported that 270 Americans die each day from gun-related incidents. What can be done in the face of such a reality? Well, easily the most radical solution I have come across is that suggested by the former Supreme Court Judge John Paul Stevens. (He was one of the four who voted against the Scalia version of the Second Amendment.)
Bearing in mind the precedent that the 18th Amendment, restricting the availability of alcohol in the US, and passed in 1919, was repealed in 1933 by the 21st Amendment because it was doing more harm than good, Stevens proposed that the Second Amendment should be repealed.
After all, the USA has one of the world's most powerful armies. It has no need of a militia. So go ahead and repeal. Is there any chance that President Biden will give it a go? Somehow I doubt it.
Andrew Hook is Emeritus Bradley Professor of English Literature at the University of Glasgow