Guns and the US Constitution after Newtown

Grief stricken Americans will ask why is effective gun control beyond the capacity of their politicians. Peter Foley/ AAP

The horrific Newtown school massacre has again raised the question of why effective gun control is beyond the capacity of American politicians. The question is necessary, natural and appropriate. But it also misreads the constitutional character of American politics which, for both good and ill, remain far more ideological than those of all other liberal democracies.

Change and regulation, which in an Australian or western European context, would entail a technocratic debate over their utility, often raise fundamental questions about the relationship between citizen and state in the US .

In Canberra, healthcare is framed by a competition between two parties each claiming they can deliver it better. Deference to “experts” is high on both sides. In Washington, healthcare is a proxy for a centuries-long struggle between proponents and opponents of federal power – deference to experts takes second place. “Obamacare” is a debate about first principles; Australian Medicare is about technocratic delivery.

The US Constitution largely accounts for this difference. Unlike its Australian counterpart, it gives practical form to an idea, first posited in the Declaration of Independence, that some rights are so basic (“unalienable”) they remain beyond the power of government to abrogate. The United States is an experiment, now in its 24th decade, to see whether government can be so constituted that these rights remain secure.

Initially, these were the right to life and liberty and the pursuit of happiness. In the Bill of Rights (the first ten amendments to the US Constitution, passed in 1791) they were further extended to include, among others, the right to freedom of speech and of religion, and to trial by jury. In the 221 years since, constitutional rights have been further extended to include voting rights, the right to privacy and, from that asserted right, the right to reproductive choice.

The constitutional right to bear arms continues to invoke an ideological clash of a similar intensity to the abortion issue. Proponents of each right acknowledge there are consequences to the exercise of it. Reproductive choice campaigners recognise that since Roe v. Wade (1973) there have been more than 50 million abortions in the United States (1.2 million per year or 3000 per day).

Similarly, advocates of gun choice can’t fail to acknowledge that guns, over the same period, have been used to kill almost 400,000 Americans (about 9,000 per year or 25 each day).

In response, pro-gun and pro-abortion lobbies both argue a variation of “so what?” and “who cares?” The holding of the right is more important than the consequences of its holding. If a woman wants an abortion the government cannot second-guess her. If that same woman wants to own a gun, what right has the government to ask her why and how many? The National Rifle Association (NRA) and the National Organization for Women (NOW), whilst they differ on most issues, are nevertheless engaged in the same political strategy: to make their asserted rights secure in the Constitution, sufficient that mainstream politicians will steer clear of the issue – as both Obama and Romney did this year.

Abortion and gun rights campaigns each offer a slippery slope argument: restrict abortion in the third trimester and eventually women will be denied the procedure in their second; ban assault rifles and a precedent for ever more restrictive gun control will be established until all firearms are banned. Give the government an inch and it will take a mile.

In the days ahead, the NRA will campaign in identical fashion to Planned Parenthood when abortion restrictions are mooted. Denying the right to bear arms, the NRA will claim, invites government to regulate the behaviour of citizens in violation of the US Constitution. The freedom to own guns, like the freedom to make decisions about one’s own body, are the province of the individual; they brook no governmental intrusion. Regulation of either would alter fundamentally the relationship between citizen and state – in favour of the power of the latter.

Importantly, the fervour with which each right is claimed should give us an indication of the practical political impossibility of altering the Constitution so each right is denied, weakened or even substantially regulated. The US Constitution has been amended only 27 times since its ratification – or only 17 times since 1791. Amendments require a two-thirds majority in both houses of Congress (impossible on Obamacare and that was mere legislation) and then ratification by two-thirds (or 33) of the 50 states.

Amendments are thus only really possible when there is a genuine national consensus or ambivalence on the issue at hand. Neither guns nor abortion are marked by consensus or ambivalence. Their significant regulation is a political non-starter. The greater surprise after Newtown will be a President Obama making gun control a central issue of his second term. Politicising the issue now would only further alienate the Republicans he needs on-side to cut a budget deal, as David Smith argues.

My argument is not about the moral rights and wrongs of access to guns and abortion. Rather, it is to observe why and how the US Constitution, by enshrining a right to them, renders both issues immune to political compromise and thus to technocratic regulation.

Gun rights will continue to lead to gun deaths; abortion rights will continue to lead to abortions. The willingness of both rights claimants to defend these consequences fiercely and often absolutely goes some way to explaining why neither guns nor abortion will be subject to greater federal regulation anytime soon.

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