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How to ban guns

In Current Affairs, Foreign Affairs, Society on December 19, 2012 at 6:30 pm

By Jonathan Quaintrell-Evans

Since last week’s horrific massacre of children and their teachers at a primary school in Connecticut, USA there has been much talk about whether the American status quo in gun law should finally be confronted. US President Barack Obama has promised “meaningful action” and the movement in the States campaigning for amended gun law is understandably, ramping up in pressure. In the United Kingdom we thankfully do not share America’s problems regarding fire arm ownership, yet we have been almost as impassioned as the American people themselves on the subject and we seem to have adopted – with the help of our media – a ‘just change it’ approach concerning the line we believe Obama should now take. There is a problem with this however. What everyone seems oblivious to – or what we’ve forgotten in the upset – is that the right to bear arms in America is not a law. It is a clause in the Constitution. It is in fact no less than the second amendment on what is called the Bill of Rights – the first ten amendments of the United States Constitution.

The very point of a codified constitution like that of America’s is that what is present on it cannot ‘just be changed.’ It exists to at all times protect the rights of the people; holding the concerning government to account, limiting its power and restricting its ability to legislate with absolute freedom. A constitution is the ultimate authority and its constant control upon the actions of government is bolstered by the application of the law; in America’s case the Supreme Court has the power to render any legislation that is considered to undermine any element of the Constitution illegal and invalid.

The United States government can at any time attempt to pass legislation with the aim to alter the conditions of gun ownership law. However, any such legislation could be construed to be at variance with the amendment that states that “the right of the people to keep and bear Arms, shall not be infringed,” and, as has already happened in the past on the argument of fire arms the Supreme Court will do exactly what it says on the job description and veto the legislation, protecting the supremacy of the Constitution.

So, we find ourselves in a situation where the only realistic way to make any meaningful changes to the status quo would be to alter the Constitution itself. Now, unlike laws which – at least in the English judicial system – can be made or abolished by whatever government is in power at the time, elements of a constitution are – rightly – considerably more difficult to change. If a constitution was easy for a government to change it would render the statutes utterly useless and devoid of any meaning or influence. The United States Constitution, being the model of all codified constitutions is particularly difficult to amend. For even the tiniest amendment to be made the consent of two-thirds of Congress would be needed. I suspect that despite party politics President Obama would have trouble convincing even the Democrat-led Senate, let alone the Republican-led House of Representatives. But even if Congress was in the bag, further consent from three-quarters of the American states would be needed to legitimise an amendment. Two-thirds of a Congress heavily influenced by the immensely powerful National Rifle Association and three-quarters of an entire country in which approximately 300 million fire arms are in private, domestic ownership. President Obama barely featured gun law in his latest election agenda – despite having always had a liberal attitude on the issue – as it would have lost him even the centre-ground states essential in his narrow victory. I am not one to pass judgement on the attitudes of the American people but really… An amendment to the Constitution? I’ll eat my hat.

All this constitutional business is difficult for us to understand in the UK. We do not have a codified constitution like America’s. Our’s is an uncodified constitutional arrangement that relies on the perfect coexistence of various legislative bodies, the rule of statutory law and the democratic power of the people to influence the constitutional makeup. A written, codified constitution would in fact be incompatible with our system, which is entirely based on what is called the Sovereignty of Parliament; the factor that determines that nothing is more powerful than the Crown in Parliament. Parliament – the most influential section of which is the democratically elected House of Commons – has absolute power to make or repeal any law and is generally able to legislate without the interference of the Courts. As each consecutive Parliament has equal power to legislate, essentially no legislation can be passed that cannot be ‘un-passed.’ The Sovereignty of Parliament is therefore the foundation of the United Kingdom’s political system and must never be undermined by a codified constitution. 

I have chosen to not heavily consider my personal views whilst writing this particular article as the question of whether ownership of a fire arm is ‘right’ or not is a completely subjective matter. One thing is certain and that is that like it or not, ownership of a fire arm in the United States is widely considered to be symbolic of an individual’s constitutional right to do so. It is therefore fair to say that even those who do not regard it as acceptable to  own a gun personally, would not be wrong to be of the opinion that they should nevertheless have the right to do so. I would suggest that seeing as a meaningful amendment of gun law in America is anything but just around the corner, the President instead focuses on the social aspects of his society, and tries to find ways in which fire arms do not end up in the hands of maniacs like Adam Lanza.  

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