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Andy Ho

The Straits Times

Publication Date : 10-01-2013

On December 14, Adam Lanza, 20, shot and killed his mother at home before driving to a school to mow down 20 first-graders and six school employees with an assault weapon. He then killed himself with a handgun. His mother legally owned the weapons he used.

In the United States, gun owners point to their right to bear arms, as enshrined in the Second Amendment to the Constitution.

This states: "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."

Does this phrasing allow individuals to bear arms per se or only as part of a well-regulated militia?

The issue has drawn different comments, including a column in these pages which argued that the "collective right to maintain militias against autocratic government (is) antiquated" and that "firearm possession (should be) restricted to trained and uniformed personnel so one can walk on the streets free from assault".

In fact, the US Supreme Court did offer a logical argument in District of Columbia v Heller (2008) why the Second Amendment refers to a constitutional right of the individual to bear arms per se, outside the context of militias.

It has long been debated in learned circles whether the right to bear arms is an individual or a collective one. Before Heller, the last important Second Amendment case was US v Miller (1939), which affirmed the view held since the latter part of the 19th century that the Amendment was primarily about a state's right to raise a militia to protect itself against tyranny. While this might be true, the Heller Court asked what the state's right to raise a militia was itself grounded upon.

The answer: It was built upon a pre-existing and ancient right of the individual to bear arms.

How so? The Heller Court noted that the clause "a well regulated Militia" was really a preface to the operative clause, "the right of the people to keep and bear Arms". It said that according to established rules for interpreting all statutes, the clause that prefaces an operative one does not restrict it. Instead, the prefacing clause is meant to clarify ambiguities in the operative one, if any.

In other words, the operative clause - on the right to bear arms - was always primary. The prefacing clause on raising a militia was secondary. This meant that, while a free state may certainly raise a militia, that capacity was based upon individuals who already had the right to own and carry their own guns. The clause about raising a militia was historically intended to prevent the federal government from robbing the states of a right they always had.

This concern about a federal or central government becoming tyrannical against a state government has always animated US politics because of the colonial experience with the non-representative government of the English Crown that eventually led to the War of Independence of 1776.

The US federal government was officially formed in 1789 as a constitutional republic where power was to be shared between the federal government and state governments. In this federation of states, the states were meant to matter very much whereas the federal government was not to be all-powerful as it might well be in today's Britain or Malaysia, say.

While the federal government was limited to specifically enumerated powers such as printing money or declaring war, all unenumerated powers were to belong to the states. That is, there is a presumption in the Constitution that any given policy question was, by default, to be addressed by state governments. The Founders wanted it so because they felt that, in a huge country, decentralised policy decisions at state level were more accountable to local tastes, preferences and economics.

In sum, federal and state governments share power in a "dual sovereignty" system, an arrangement designed to prevent a dictatorship from ever emerging. And critical to this idea was the states' capacity to have men bearing arms, organised into militias that could literally fight off the federal government if it should ever dare to come against a state with force.

The Second Amendment's phrase "shall not be infringed" suggested it was a right of "the people" that pre-existed the writing of the Constitution, the Heller Court noted, adding that "the people" was always used in the Constitution to refer to an individual and not collective right.

If the right pre-existed the written Constitution, then every individual citizen always had the right to bear arms to begin with, a right meant primarily for self-defence against others and tyrannical rulers, the court reasoned.

What of the point about a well-regulated militia?

Well, the "militia" is a subset of "the people" in whom the right to bear arms resides. In particular those people who were "male, able bodied, and within a certain age range" might qualify for the militia. Others who are not militia members but still of "the people" are individuals with the right.

If this argument holds, then the right to bear arms went beyond the militia context so that "all members of the political community" - all individual citizens - had the right to bear arms, the court concluded.

The Heller Court thus nailed down a constitutional principle that the right to bear arms is an individual one so ancient that it pre-dates the need for militias per se, notes University of California, Los Angeles law professor Adam Winkler in his book Gunfight.

This means that any law to stop citizens from buying, keeping and using firearms would infringe upon a constitutional right of the individual. This would be as unacceptable as any attempt to limit the quintessentially American right to free speech or religious liberty of the individual that the First Amendment enshrines.

Legislatively, Congress - one of the three branches of the federal government - has not broached a new gun law since a federal law to ban assault weapons was passed in 1994, and which has now expired.

Even if the Newtown massacre should somehow impel politicians to take up gun control in a big way - and Congress somehow manages to pass a constitutionally permissible law to ban gun purchases - the fact is that America is already awash with firearms.

About 40 to 50 per cent of all guns owned by civilians globally are to be found in the US. A 2003 survey estimated that of the 639 million privately held guns worldwide then, 276 million were in the US. A 2007 survey estimated that over half of the world's eight million new civilian guns made every year were purchased in the US.

Understanding the intricacies of the US Constitution on the right to bear arms helps explain to outsiders why gun control is so fraught with difficulty, even without the need to go into the interests and politicking of gun lobby groups. Thus, short of a millenarian miracle, where Congress somehow passes a constitutionally kosher law to ban guns, there will always be too many guns in the Land of the Free and the Brave.