BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

MUSINGS: Strange interpretations (ii)
10/11/2015

The Second Amendment has been the subject of one of the greatest pieces of fraud…[…]on the American public by special interest groups that I have ever seen in my lifetime…”

– Chief Justice Warren Burger (1991)

It has always perplexed me how the text of the Second Amendment to the US Constitution could ever have been construed as importing a universal right to bear arms. After all, the amendment, which I reproduce below, seems to be premised on the existence of a state militia rather than on the fundamental right of any individual to carry and use, when so minded, any firearm that catches his or her fancy. The Amendment reads as follows:

“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…”

It is at least surprising that, to my best knowledge, no one has so far attempted a Kim Davis and suggested that the Supreme Court also got this one wrong, especially since the ruling clearly facilitates the contravention of the Seventh Commandment, but then those of that ilk seem to consider that male on male sex is the darkest sin possible (the abomination of desolation) and, given their barely concealed politics, are most likely to advance the circular notion that “guns do not kill people anyway”.

Indeed, one of the more laughable exponents of these kinds of views, Republican Presidential hopeful, Dr. Ben Carson, advocated only recently as a remedy for these mass murders not the control of ready access to high-powered guns to by crazed perpetrators, but the foolhardiness of those under assault to challenge the gunmen as a group. By his reasoning, the gunman may shoot one of them but can’t shoot them all. It is this type of comic book, Fantastic Four/Captain America strategy that he considers most effective. The right of the citizen to bear arms is indefeasible in his book.

A recent publication from former Associate Justice John Paul Stevens on the US Constitution contains an essay excerpted by the Washington Post in April last year that confronts the precise point that the accepted interpretation placed on the Amendment is neither necessary nor indeed cogent. According to Justice Stevens, for more that 200 years after the adoption of that amendment, it was uniformly construed that the right thereby guaranteed applied only to keeping and bearing arms for military purposes and that there was no limitation on the power of states to regulate the ownership of firearms. Thus, in one 1939 case, it was held that the possession of a sawed-off shotgun might be constitutionally prohibited since that sort of weapon bore “no reasonable relation to the preservation or efficiency of a well-regulated militia”.

However, as Stevens recounts, by a five to four majority in a 2008 decision, the Court held that the amendment protected an individual’s right to keep a handgun in his or her home for the purposes of self defence. According to Justice Scalia who wrote the majority judgement in that case, the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defence of hearth and home”. Noteworthy here is the absence of any originalist reading of the Constitution, a pet thesis of Scalia, that would have served to limit such arms to the muskets then prevalent at the time of the writing of the Constitution by the founding fathers, although he was careful to assert that the concept of the well-regulated militia was one only of the reasons recognised by framers out of a general pre-existing right to arms. Nor is there any suggestion, helpful or at all, in his reasoning on the mode of distinguishing the law abiding responsible citizen to whom the right is arguably available from his scofflaw, irresponsible counterpart who is not entitled to benefit similarly.

At that time, Barack Obama, then an Illinois Senator, but who was to become President fewer than six months later, commented, “I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures…”

The final nail in the express intendment of the right being limited to state protection only came with another 5-4 ruling in 2010 where the court used the notorious due process clause of the Fourteenth Amendment to reason that the City of Chicago, as did the District of Columbia in the earlier case, had no power to deprive any person of liberty by outlawing the possession of handguns by private citizens.

In this decision, Justice Thomas unsurprisingly agreed with the majority, although he thought that the true reason lay elsewhere in the aspect of the Fourteenth Amendment that also prohibits the abridgement of “the privileges or immunities of the citizens of the United States”.

Not to put too fine a point on it, it seems at least intriguing that there should be wide support for a law that permits, under the guise of a fundamental right, any dispossessed individual with a chip on his shoulder and mayhem on his mind to enter a public place suitably armed in order to avenge imagined wrongs and to destroy the lives of many innocent individuals; while a law that is based on the highest expression of love of one individual for another as the basis of a human right should be subjected to all sorts of spurious legal arguments and other forms of political dissent. Perhaps this may be a sign of the times; not of the end time that was erroneously prescribed once again during the last week, but of the times when, according to Mark Antony, right judgement is fled to brutish beasts and men have lost their reason.

PS -The Rime of the “Modern” Mariner
I do not now recall what it was that inspired former Secretary General of the United Nations, Mr. Kofi Annan to assert, in a subsequently oft-quoted dictum, that “Barbados as a jurisdiction frequently punches above its weight”, or what evidence he cited in support, but events of the past week when the Barbados Water Authority found itself unable to satisfy adequately the water requirements of all the citizens of this relatively tiny nation, my tenement yard included, would certainly have subjected this claim to rigorous examination. Even more ironic is that this deprivation occurred in the middle of one of the wetter weeks in recent times… Thoughts of Coleridge came instinctively to mind –
Water, water, everywhere
And all the boards did shrink
Water, water, everywhere
Nor any drop to drink!