In the wake of the latest mass killings in the US, no doubt there will be a lot of talk about a constitutionally guaranteed right to bear arms. So we should be perfectly clear about this:
NO RIGHT TO BEAR ARMS IS INSCRIBED IN THE US CONSTITUTION
What there is is this (in the famous/notorious Second Amendment, which is actually entitled ‘Right To Bear Arms’):
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.
In other words, if a gun owner has no intention of joining a militia, they have no right to bear arms. What is more, this amendment was ratified on 15 December 1791 – a time when the United States had no standing army and no police force. Then it made sense to want to secure the United States by means of a ‘well regulated militia’. But the United States now has chosen a quite different approach to security, having built up both army and police in abundance and leaving ‘a well regulated militia’ with no part to play in the American security apparatus. Only in the mind of the lunatic fringe are militias seen as adding to anyone’s security. What is more, given that the threat America’s current self-styled militias have in their sights is Congress itself, the authors of the Constitution (who explicitly placed Congress at the pinnacle of American social organisation) could hardly have had them in mind when speaking of militias or guaranteeing the right to bear arms.
In short, this supposed right is simply an irrelevant anachronism. In that respect it is much like other things in the Constitution, such as Congress’s right to issue ‘Letters of Marque and Reprisal’ (‘Article 1 – The Legislative Branch. Section 8 – Powers of Congress). Or do upholders of the divine theory of the Constitution’s eternal validity believe that Congress should still be commissioning privateers to seize other countries’ shipping? So the right to bear arms would probably not be being ‘infringed’ if gun owners were not members of militias and where (as in present-day USA) there was no likelihood that, in the presence of massive police and military forces, they ever would be.
In the context of the Constitution, phrases like “shall not be infringed,” “shall make no law,” and “shall not be violated” sound pretty unbendable, but the Supreme Court has ruled that some laws can, in fact, encroach on these phrases. For example, though there is freedom of speech, you cannot slander someone; though you can own a pistol, you cannot own a nuclear weapon.
In other words, if the Supreme Court decided that the Second Amendment was an anachronism, it would simply wither. No need even to repeal it.
Not that that is likely any time soon. Astonishingly, the Supreme Court (and various states’ courts, I think) have upheld an indiscriminate right to have a gun. As far as I understand the judgments, this is based on an explicit disregard of the very reason the Constitution itself gives for the right – the need for a well-regulated militia. So all those Americans who feed the need for a ‘right’ to be equipped to murder 20 children and 7 adults if that’s the way their mood takes them should feel reassured. And the rights of the children and the adults? forget them – the right to own a gun trumps everyone else’s right to life (and therefore liberty and the pursuit of happiness).
Why would any sane person want this situation to continue? Presumably if a killing like this happened every day there would eventually be a change of heart, so one can only ask, how many children need to be murdered before this stops looking like a right even to the lunatic fringe? Perhaps even more pointedly, on the assumption that more children will be killed eventually, would these enthusiasts be happy to have their children bussed in to be killed when the next occasion arises? Or is that (unlike an enthusiasm for everyone having the right to genuine instruments of mass destruction) a little macabre?