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The Dead Tree

How the United States Constitution makes gun control nearly impossible

In the aftermath of the shooting at Stoneman Douglas High School in Florida, gun control is once again a hot topic in the U.S. In the days that followed the shooting, many of the school’s students spoke out about the U.S. government’s lax stance on gun control, garnering considerable attention (and criticism) on social media. This has since led to televised debates and a national movement last week of students walking out of their schools to protest for stricter gun regulation.

While past shootings of the same magnitude gained widespread media coverage due to their particularly tragic circumstances, they did not seem to ignite the same level of activism that has stemmed from the Stoneman Douglas shooting. This is perhaps because of the fact that this shooting was perpetrated by a youth with an assault rifle, and activists have been calling for specific restrictions (i.e. minimum age requirements or limiting the sale of assault rifles). Furthermore, it is notable that this increased level of gun control advocacy has seen an equally passionate level of resistance from gun owners.

The United States presents a perplexing scenario: an issue that seems to be almost objectively agreed upon in the rest of the developed world simultaneously exists as something infinitely divisive in an entity once heralded as “the leader of the free world.”

But perhaps the rest of the world has it wrong, and nations with tough gun control provisions are depriving their citizens of a key freedom. It is easy for one to posit pro-gun control arguments without seeing the other side of the debate; this is because there is a sizeable segment of U.S. citizens that are anti-gun control, and such a populace does not seem to exist in nations that have exerted such control. The pro-gun mentality is emblemized by the powerful entity that is the National Rifle Association (NRA), and its track record of political lobbying to keep guns accessible is well-documented.

However, what is more critical to this issue is not whether people think that there should be stricter gun control laws, and instead whether such laws are even possible. While social media is regularly set ablaze by passionate rhetoric on either side of the debate, only the pro-gun enthusiasts seem to have the law on their side. Indeed, the Second Amendment of the U.S. Constitution is the progenitor of this bottomless pit of argumentation, and those looking to defeat any restrictions on gun control cite its text: “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.”

Firstly, just from a grammatical standpoint, the amendment is poorly written. Its use of commas is grotesque. Even the late Supreme Court of the United States (SCOTUS) Justice Antonin Scalia had to rephrase it for clarity: “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

What is more important, however, is the context in which Scalia analyzes the amendment. It comes from the 2008 SCOTUS decision District of Columbia v. Heller, where the court struck down a District of Columbia law that had aimed to restrict the purchase and use of handguns because it violated the Second Amendment. The case is essentially a debate between justices about the scope of the Second Amendment and what exactly it protects. And although this decision was monumental when the court released it, it does not seem to be cited often in the current debate surrounding gun control. As we all know, constitutional law is the supreme “law of the land” in most jurisdictions; thus, it seems odd that a case where the court defines what is impermissible under the Constitution is rarely mentioned in the rhetoric on either side of the debate.

The lengthy decision is a legal, historical and linguistic analysis of the Second Amendment. The dissenting justices essentially attempted to establish that the right to “keep and bear Arms” applied only to citizens possessing guns for military purposes. Ultimately, a majority of the court sides with Justice Scalia in asserting that citizens have the right for purposes not related to the militia, and that the phrasing of the amendment that mentions a militia simply announces a reason motivating the right’s existence.

Contrastingly, Justice Scalia says that there is a limitation to the right. He specifically states that the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” He also states that the Second Amendment does not invalidate “longstanding 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.”

However, that’s not what the Second Amendment says.

The Second Amendment mentions nothing about self-defence, or that the “People” specifically means law-abiding, responsible citizens without mental health issues. While it does say that the “People” have the right to “keep and bear Arms,” it simply does not say that the right is limited to any specific purpose. However, it does say that the right “shall not be infringed”; in fact, vehement members of the NRA often cite that clause to establish the strength of the Second Amendment’s protective nature. From a grammatical standpoint, they’re right.

No matter which way you slice it, it seems that the Second Amendment actually does provide an unqualified right to firearms. It is “the” right, not “a” right. And it shall not be infringed. Unfortunately, limiting the right to self-defence purposes, or placing other restrictions on who or where one can keep and bear arms does seem to infringe the right. In fact, the very dictionary that Scalia uses in his judgment defines the word “infringe” to mean “[t]o break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.” Interestingly, neither Scalia nor the dissenting judges discuss the “shall not be infringed” clause in their decisions, but do go into painstaking detail into just about every other word in the Second Amendment. Furthermore, unlike abstract principles like “life” or “liberty”, the Second Amendment does not deal with the vague. While certain people would argue that liberty, for example, encompasses certain liberties but not others (see the debate surrounding the right to an abortion), it is much more difficult to argue that “Arms” precludes certain types of firearms (although the dissenting justices in Heller tried to do that).

Furthermore, the U.S. Constitution does not have a Section 1 like the Canadian Charter of Rights and Freedoms. Really, no law in the U.S. can violate its constitution and still be upheld. Yet, even the minimal restrictions on gun ownership in the U.S. seem to violate the text of the Second Amendment, and the SCOTUS has allowed them to continue operating.

Of course, both sides of the debate understand that gun violence is an issue in the U.S.; thus, it would be absurd to disagree with what Scalia says are permissible limits to gun ownership. But amidst his own criticisms of judicial activism, reading in his own meaning to the Constitution is exactly what he does, albeit he supplements his argument with historical examples of how people in the U.S. viewed and used firearms at the time of the Second Amendment’s conception.

Yet, history is the main problem with the Second Amendment, and it is precisely why the U.S. Constitution is a “dead tree,” a tragic opposite to the Canadian Charter. With the Second Amendment, there is no room for interpretation. There is no Section 1 to save legislation that many would agree is sensible. Instead, what the U.S. has is a true relic of the past, a right enshrined into its supreme law derived from the violence that the framers of its Constitution witnessed on a regular basis. And although their intentions for the “People” to be able to defend themselves were noble, in this instance this intention truly paved the road to a Hell where children are able to slaughter each other in frightening quantities.

What is important to recognize is that the U.S. was built upon a history of violence; the ironic part is that the Second Amendment, put in place to perhaps minimize this violence, instead generated an entirely new subset of it. However, the motivating factors of self-defence should not be ignored. Interestingly, just as we in Canada preach tolerance of other cultures, we should remember that guns, self-defence and a greater sense of individuality, however misguided one may believe this sense to be, is an important part of American identity. There are people who have a sincere belief that they need their guns not only for hostile intruders but also in case the government wants to exert what they feel to be an unacceptable level of control over them. So it seems that in America, guns are a religion.

All of this presents a major problem: the only way to unequivocally establish gun control is to amend what is an essentially flawed constitution. But a toxic cocktail of sincere beliefs and millions of dollars of lobbying make that a virtual impossibility. With the way things have progressed, it seems that many more people will have to die before the necessary majority of U.S. voters agree with what practically every other developed nation has already decided: gun control is necessary to reduce civilian casualties, and reducing civilian casualties is more important than the freedom to possess guns.

The activism arising out of the Stoneman Douglas shooting is a positive sign for proponents of gun control restrictions. A scary reality, however, is that it seems that no amount of deaths will sway the consciences of some diehard gun owners. The question is whether or not there are enough of those diehards to block the removal of what is arguably one of the most outdated, problematic and improvident provisions in the U.S. Constitution.