‘Guns don’t kill people, people kill people.’ The recent shooting spree in Newtown, Connecticut, where 20 children and 7 adults died, has sparked fresh debate in the U.S about gun control laws. Previous massacres led to little change, but on face value the horror of primary school children senselessly dying appears to have struck a chord that the others did not. And how many others? The United States of America is unique; no other developed nation experiences close to the same frequency of gun-fuelled massacres. Citizens may carry concealed weapons in the street, may purchase semi-automatic rifles with ease and there are little – if any – limitations imposed on persons with mental disorders. It is dichotomous that a nation that seeks to stabilise Afghanistan through a policy of arms control so fiercely fights against any similar domestic action; however, the issue of gun control in the U.S is complex and self-protection is deeply ingrained in the national psyche, prompting fatalistic scepticism that any of the current political momentum towards federalised gun control will prove successful. So what is the basis for Americans’ continued devotion to their guns? And does it hold up?
“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.”
What the divisive debates ultimately come down to is the Second Amendment to the United States’ Constitution. There is well-documented history of similar policies in history, based upon the notion that all citizens of a realm are the soldiers of the king; King Henry II of England formalised this obligation to defend his dominion with the Assize of Arms, which required all freemen to possess arms and prevented anyone from alienating themselves from their weapons. This concept of a ‘Militia’ was credited as a reason for England’s military successes on the Continent by Tudor commentators. A series of declarations set forth the right of English citizens to keep arms ‘for their defense suitable to their conditions and as allowed by law’.
The United States at this time was no superpower, but an agricultural society and ‘frontier country’. ‘Arms’ included helmets, greaves and any other item required to enter battle. The English Militia traditions influenced the American founding fathers’ views; they perceived that arms and liberty were closely linked, but feared the dangers posed by standing armies in times of peace. Concurrently, the founding fathers believed that assembling a national army only when war broke out was strategically disastrous. The solution was to give Congress the ability to raise a standing army, but guarantee funding for a maximum of two years before it had to be renewed. A Militia would counterbalance any dangers to the people posed by the existence of a standing army. The States were effectively in control of the Militia; Congress managed the standing army, although they had some powers with respect to the Militia in order to ensure they were adequately armed and organised, so that Congress could utilise them in times of war. Significantly, the role of the Militia and any standing armies was to provide for common defence by the States against the potential tyranny of the Federal government, not individual defence.
Despite Justice Scalia’s judgement in 2008 concluding that the right to gun ownership exists independently from the right to form a Militia, I believe that by interpreting this amendment either purposively or textually results in the same conclusion: the right to bear arms is intrinsically connected to membership in a State Militia. The purposive interpretation relies upon the intended purpose of the Amendment; as explained above, the purpose of a Militia was to check the power of the central government, as exercised through standing armies, to prevent it from imposing tyrannical laws upon the population. It was therefore necessary to have an armed population, so that they may form an effective Militia. The textual approach involves looking at the exact wording of the Amendment; in this case, the placements of commas is crucial, the Amendment does not read ‘a well regulated militia, being necessary to the security of a free state and the right of the people to keep and bear Arms, shall not be infringed’. In other words, the Amendment does not protect two rights independent from each other. Rather, the use of a double comma renders the sentence enclosed additional – it may be removed without damaging the meaning of the sentence – and therefore the Second Amendment may be read ‘A well regulated Militia, the right of the people to keep and bear Arms, shall not be infringed’. The meaning is clear; the right to keep and bear arms is based upon one’s membership in the Militia – a loose organisation of civilians answerable to the State authority – and does not exist independently as a separate right.
This interpretation is complicated by the fact that any citizen waging war against the U.S government is committing treason as described by the very same Constitution. However, the purpose of a Militia at the time was to counter-balance the federal standing army in order to protect the populace during peacetime. These Militias did not attempt to overthrow the federal government and are now a no longer used institution of State power. The ‘Militias’ formed in 1993 and 1995 in Waco and Oklahoma City bore no resemblance to the Militias described in the Second Amendment as they were not State-organised and, as a result, those involved likely did commit treason. The argument that the Second Amendment protects an individual’s right to own and carry a gun, rather than be a member of a Militia (and necessarily be armed for that purpose), is fairly recent. It first emerged after the Gun Control Act 1968 was enacted and gained prominence in the 1970s. The ‘individual rights’ movement continues to draw supporters, despite lacking a solid legal foundation.
The Second Amendment is a divisive passage and the very thought of gun control is viewed as blasphemy by many. My legal interpretation clearly comes to the conclusion that, as an applicable provision in modern-day society, the Second Amendment is essentially defunct; it binds the right to bear arms to membership of State-run Militias, which no longer exist. However, previous jurisprudence of the United States says otherwise. New measures have been implemented by the President and he has called upon the legislative body – Congress – to impose a series of bans on semi-automatic and automatic weapons in addition to more stringent mental health checks prior to purchasing weapons. Assuming that Congress will pass at least some of these measures, what are the prospects of the Courts declaring such measures unconstitutional? The Supreme Court is not bound by its own previous judgements, so would be in a position to not follow Justice Scalia’s approach to the Second Amendment; but will it? There are positive signs; recently the State of New York imposed a series of strict gun control laws, which have not faced a challenge yet. While the realities of State and Federal power respectively are extremely different in America’s complex political climate, the New York move may be an example of changing views.
Madelaine Donovan is studying Law and International Relations at Bond University. She is the former Promotions Officer of BUUNSA. Maddie’s last article for A19 discussed the future of Afghanistan: http://articlenineteen.org/2012/10/looking-to-the-future/
 English Historical Documents 416 (David C. Douglas & George W. Greenaway eds., 1953)
 John Fortescue, The Governance of England, 114-15 (C. Plummer ed., rev. ed. 1885).