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Doug Saunders

Doug Saunders

Doug Saunders

How U.S. gun ownership became a ‘right,’ and why it isn’t Add to ...

‘That,” we tell ourselves, “is just the way the Americans are.” We say it every time some firearms horror strikes a movie theatre or school or workplace. We say it when the U.S. President, reduced to tears, tries to use his limited powers to make minimal changes to laws that allow almost anyone to purchase and use an assault rifle.

After all, hasn’t it always been this way? Americans have always believed that they have a right to own and carry guns, we think. Strict gun control has never been an American option. That’s just the way they are.

Except that it isn’t. The American gun crisis, and the attitudes and laws that make it possible, are very new. The broad idea of a right to own firearms, along with the phenomenon of mass shootings, did not exist a generation ago; the legal basis for this right did not exist a decade ago.

Until 2002, every U.S. president and government had declared that the Constitution’s Second Amendment did not provide any individual right for ordinary citizens to own firearms. Rather, it meant what its text clearly states: that firearms shall be held by “the People” – a collective, not individual right – insofar as they are in the service of “a well-regulated militia.”

There had not, up to that point, been much ambiguity about this. “For 218 years,” legal scholar Michael Waldman writes in his book The Second Amendment: A Biography, “judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard,” and did not contain any individual right to own firearms.

The U.S. Supreme Court had never, until 2008, suggested even once that there was any such right. Warren Burger, the arch-conservative Supreme Court justice appointed by Richard Nixon, in an interview in 1991 described the then-new idea of an individual right to bear arms as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”

The idea clearly did not exist in the minds of Thomas Jefferson or any of the other framers of the Constitution; the individual right to own a gun was not mentioned anywhere in the Constitutional Convention, in the House of Representatives when it ratified the Second Amendment, in the state legislatures that debated it or generally in the correspondence of those involved with its creation.

And the public overwhelmingly agreed with this. For most of the 20th century, the National Rifle Association fought hard for gun control and strict limits on the availability of weapons.

As historian Jill Lepore has noted, in 1940, the editors of Detective Comics told its artists that Batman must never again dispatch a bad guy by shooting him, because of public revulsion at the idea of someone other than a police officer or a soldier holding a weapon – guns were things to be kept out of people’s hands.

The gun-rights movement emerged from the anti-government fringes in the 1960s and ’70s, took over the NRA and raised huge sums to impose its agenda on U.S. lawmakers. And it crept, rather quickly, into mainstream U.S. thought through the Republican Party. In 2002, John Ashcroft, previously known for his strong stances against racial desegregation and birth control, became the first federal attorney-general to proclaim that individuals should be able to own guns.

Then in 2008, in a reversal of all its precedents and a bizarre overturning of mainstream legal and historical scholarship, the Supreme Court ruled that there is indeed an individual right to own weapons (though one with limits). It was a court loaded with extreme-fringe figures, such as the decision’s author Antonin Scalia, appointed by Republican presidents in acts of partisan vengeance.

The individual right to bear arms is only a few years old, and based on nothing; its fall could be as quick as its rise. Once the Supreme Court has two more appointments by Democratic presidents, it will eventually provide a correct interpretation of the amendment, the interpretation Americans knew and respected for 217 years.

The attitude behind it will take longer to erase, but it too can fade. Americans who are horrified outnumber those who want weapons. This era will be remembered, in a generation, as one of those periodic explosions of irrationality in the United States, one with especially tragic results.

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