Carrying weapons in the United States, between right and duty

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Ghislain Potriquet, University of Strasbourg

In a school (Uvalde), a high school (Columbine), a university (Virginia Tech)… But also in a movie theater in Colorado, on the subway in New York and even at the military base in Texas: the killings by weapons for making anywhere and anytime in the United States for the past 20 years. Why? In 2021, psychiatrists conducted a study that confirmed a more common diagnosis: “These killers are all sick! They are, in fact, and more precisely: schizophrenic, bipolar, BOUNDARY, and so on. Painful and untreated. Sick and armed.

Each murder will then ask two questions. The first, very complicated, is Americans ’access to psychiatric care, especially screening devices. The second, now known to many, is the ubiquity of arms in the United States. And the explanation provided is the Second Amendment to the United States Constitution, which guarantees, or guarantees, everyone the right to bear arms, an amendment initiated by the powerful NRA lobby, the National Rifle Association, effectively preventing anyone from enacting legislation to prevent further killings. So no change.

American love of guns

As André Kaspi sums it up in his book on gun culture in the United States:

“The cycle seems unchanging: killings, widespread emotion, strong demand for legislative change, no action in congress.»

Even if at this time Republicans and Democrats are finally able to get the Senate to approve the new measures (providing, among other things, for stricter controls for people who ages 18 to 21), their application can solve only a third of the problem, according to the calculations of New York Times. Above all, the Senate vote on June 23 came just hours after the Supreme Court upheld the right of Americans to leave their homes armed.

The Court’s decision was loudly celebrated by the NRA. If this lobby is very strong, there is no debt at the moment. Americans love weapons just as much as the French love wine: they are interested in their production, in their particularities and they want to use them. Each weapon thus has its terroir. Let us recall that in the spring of 2020, during the confinement period, wine traders remained open in France, while in the United States, these armories were considered “necessary businesses”.

A recent study very seriously Pew Research Center tells us more about this love of Americans for weapons. First, it is less unconditional than one would like to believe. Second, the question of carrying weapons is now highly political. Let us give as an example the statements of the great historian of FoxNews Tucker Carlson for whom, after the Uvalde massacre and before the next mid-term election, Joe Biden’s goal is to disarm those who didn’t vote for him! In a highly polarized political landscape, these relentless controversies preclude any debate, any consensus, any solution. In addition, none of the Republican senators (except two) will run for midterms in November dared to vote in favor of measures to restrict access to weapons. The “bipartisan” nature of the law ” Bipartisan Safer Communities Act all relatives.

Can history then provide this solution? Not at all, because as always, it is twisted and subjected to different interpretations. And it cannot replace the work of the legislator. On the other hand, it will give him food for thought.

Legal fights, academic debates

In any case, history is already in the debates.

In 2008, the United States Supreme Court had to rule on the case District of Columbia v. Heller, its outcome now determines the law on carrying firearms across the country. Above, this case is simple: a police officer living in the American capital filed a complaint against the authorities forcing him to keep his firearm in the locker room after his transfer, holding a household weapon banned in Washington. In fact, the coup, very well prepared, involved an ordinary man who loved a gun because he saw it on TV and a think tank very powerful conservative and willing to defend it, the Cato Institute. All this was said by Mr. Heller himself! But back to the Supreme Court ruling. As conservative judge Antonin Scalia explained:

“There is no doubt that, according to texts and history, the Second Amendment gave an individual the right to own and carry weapons.»

What might this story be? From English history first of all, and especially, from the second English revolution (1689), which culminated in the adoption of a Charter of Rights (in English Bill of Rights) proclaiming, among other things, that “Protestant members may have, for their defense, weapons consistent with their situation and permitted by law”.

The story has always been in U.S. federal courts; historians can also identify it by writing memoirs ofamicus curiae (“friends of the court”), where they place their knowledge in the service of justice, or more accurately, in the service of one of the parties involved. In the case Heller, a recognized legal historian supports the thesis to be taken by Judge Scalia. In a memoir of about forty pages, Joyce Lee Malcolm affirmed that the right to own and carry a firearm in all circumstances is rather an English right, an individual right.

In contrast, a dozen other constitutionalists and historians, equally well -known, have argued that the right to bear arms is a collective right, which can only be legally exercised within the framework of a state militia, militia whose existence is optional according to them. The victory of arms in the United States (The Butterfly Effect, August 5, 2021).

Carrying a weapon: right or duty?

Individual right or collective right? Who to believe? The argument that the right to bear arms is an individual and inalienable right because it is English is shocking. It didn’t do well to stand the test of American history, starting a revolution that happily abolished Her Majesty’s laws.

Moreover, in XVIIe and XVIIIe centuries, this right in English was strictly framed: it was an individual only for members of an agrarian elite, allowed only to have a weapon to hunt. As for the militias in England, their members were selected, trained and equipped by the same agrarian elite who sought for its happiness. Thus the weapons of these militiamen could be kept by their supplier, or individually handed over to those who needed to learn how to handle them. But defending the Crown is more of a duty than a right.

However, in the English colonies of North America, the future United States of America, this relationship between duty and right became even more complicated. Why? We need to keep in mind the particular circumstances in which the inhabitants find themselves: the need to hunt to survive, the need to be able to protect themselves, the distance from London … The duty to protect with then confusing the individual right to own a firearm. That is why a kind of vague “duty-right” has emerged for us today but is completely identical in the spirit of the legislature of the time. So each colony passed laws stipulating that white and free men, usually between the ages of 16 and 60, had to serve in the local militia. with their own weapons and their own ammunition. Very early in their history, Americans were equipped by obligation and necessity.

The American Revolutionary War had the effect of tipping the scales very little in favor of obligation. Consider Virginia, for example: her Bill of Rights in 1776, this is confirmed in article 13:

“A well-regulated militia, composed of the entire people trained in firearms, is the precise, natural, and sure defense of an independent state. »

“Battle of Guilford Courthouse, 15 March 1781”. H.Charles McBarron

Gaining independence, the Americans adopted a new Constitution in 1787 that included, at least in theory, the thirteen federated states in a newly united federal state. The debates for the approval of this new Constitution show us that the balance is now on the right side: Pennsylvania, New Hampshire and Massachusetts have proposed to amend the Constitution to include in it a recognition of the right to individuals in possession of weapons. .

Their hasty efforts were in vain, but in 1791 the Americans, whether in favor or not of the new Constitution, restored it by passing a series of amendments called the “Bill of Rights”. United States Bill of Rights), to distinguish among other things, this “duty-right” to own the weapons written in the second amendment.

In 1803, St. George Tucker, the publisher of the first book of American law, observed that in England the fact of arms could be made against you as an act of war, while in the United States, the right to carry and weapon creature. recognized by the Constitution, and no one dreams of leaving his home without a gun or musket. The right to bear arms has become a unique part of American identity.

On June 23, 2023, in the name of this vague story the Supreme Court repealed the New York law establishing a gun license. But in the case New York State Rifle & Pistol Association Inc. v. Bruen, More so than his colleague Scalia Judge Thomas in the Heller case, because he asserted the superiority of history over the law of the case. It is therefore useless, according to Thomas, to think about the connections between the law and its purposes (method-final examination), as the Supreme Court has done for over a century. Has New York law withstood the test of law? Without a doubt. But this time, he has won history.

What does the Second Amendment mean today? Is this way still effective in ensuring the security of an independent state? Will the scale tilt too much to the right side, damaging the duty? These are the questions that American citizens and their representatives in Congress need to ask themselves. History can only give them food for thought.

Ghislain Potriquet, Lecturer in American Studies, University of Strasbourg

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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