Right to Bear Arms: an anti-federalist practice?


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The two phenomena take their roots in the American tradition, but we will see
the problems this right to arms poses nowadays through the study of some famous cases, and we will discuss the place of the Second Amendment in the 21st century.

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Right to Bear Arms: an anti-federalist practice?

  1. 1. The issue that represent militias and the “right to bear arms” movement in the U.S.A., and how they can be seen as a contemporaneous form of Anti-Federalist social practice Introduction In the United-States, the Second Amendment ensuring to citizens the “right to bear arms” and to create non-governmental militias is becoming a problem. In reality, the right to acquire guns is one of the biggest fleas of the country, that has already led, as everyone knows, to numerous mass shootings and other slips. It is therefore becoming more and more an issue of public security. Historically speaking, this right to bear arms can be viewed as one of the strongest remnant of Anti- Federalism, a well-anchored thought in a great part of the American people, who see this right as one of the last firewall against the government's tyranny. But is this Anti-Federalist view, and the Second Amendment, still relevant today? And are the contemporaneous movements for the protection of this amendment still about the protection of Anti-Federalist principles only? We will see how the two phenomena take roots in the American tradition, but we will also see the problems this right to arms poses nowadays through the study of some famous cases, and discuss the place of the Second Amendment in the 21st century. The Anti-Federalist contribution The American War of Independence (1775-1783) opposed the British Kingdom to the Thirteen Colonies of America (which were greatly supported by France, Spain and the Dutch Republic). Each side benefited, among other groups and armies, of militias. After the war, the new United States were ruled by the Articles of Confederation, drafted during the Second Continental Congress of 1777 (and completed in 1781). But under these Articles, the United-States had a weak central government, and Federalists were worried of the lack of military forces after the war, something on which the Anti-Federalists did not agree, since they saw as a threat to their private lives a more powerful central government. Let us first define what did Federalists stand for on the one hand, and Anti-Federalists on the other hand. Federalists (one of the most famous ones being James Madison) believed in a stronger central government, but on two basic conditions: first, popular sovereignty, that is to say a democratic principle following which the government is created and maintained by the will of the
  2. 2. people (through elections). This principle is close to the concept of social contract of the French philosopher Rousseau. The second condition was the establishment of a checks and balances' system, in order to avoid tyranny of the State. Such a system is made possible where powers are separated (so not invested in one person only), and thus all branches (executive, legislative, judiciary) can limit one another, so as to prevent any of them from becoming supreme: they are inter-dependent to achieve State action. This concept of separation of powers was inspired by the Spirit of the Laws, 1758 (De l'esprit des lois)of the French political thinker Montesquieu1 , but also by modern physics like Newton and his discovery of balance of powers (he notably stated that there were three universal laws of motion, and this played a great part in the advances of the Industrial Revolution). Federalists and Anti-Federalists2 (one of the most famous ones being Thomas Jefferson) were not in conflict on every level; the main one on which Anti-Federalists argued was indeed the idea of a stronger government. They feared a too much centralized authority and advocated for more local representation, which had been the goal of the Independence War. Where Federalists thought that elections in large constituencies would be a good way to represent the people, Anti-Federalists thought that smaller constituencies would be a better way to assure that the representation be fairer and include middle classes, and not lead to the elections of the more powerful, the aristocracy, only. For them, popular freedom would be best obtained through a weaker central government and by civic mobilization. All citizens would participate directly on social issues, like with open fora where equal citizens could go and propose their opinion to public debate. In this respect, Anti-Federalists agreed with civic republicanism, stressing the importance for citizens to take part actively in political action, because liberty is only reachable by active self-government. For Anti-Federalists, the best defence against tyranny is to know one another (hence small constituencies) so as to know for whom to vote; and to have a direct experience in government, which is the best fulfilment in a citizen's life, made possible through jury trial. Indeed, having local folks reasoning and appreciating a trial with their common sense is the best representative of ordinary citizens3 . 1 Murray P. Dry, “Anti-Federalist Political Thought: Brutus and The Federal Farmer”, History of American Political Thought, ed. Bryan –Paul Frost and Jeffrey Sikkenga, (Lexington Books, 2003) (It is also to be noted that both Rousseau and Montesquieu used in their works the basis of the Constitution of the Roman Republic and its separation of powers.) 2 They did not like to be called as such, since they considered themselves as being the true Federalists, but this name was attributed to them by the Federalists. Actually, both these terms do not really refer to a willingness of having a federal government, since both sides wanted it; it referred to the support or non-support of the Constitution, defining the way in which the federal government would act. For the Anti-Federalists, the government under the Constitution was consolidating all political power. 3 They are even protected constitutionally, something that does not exist in Europe
  3. 3. The Federalists overcame during the writing of the Constitution in 1787, mainly because Anti- Federalists failed to propose a consistent alternative to it (and the Federalists having the bigger argument of national defence, which was the starting point why they decided to revise the Articles of Confederation). They decided not to rebel, but to dialogue and make the Federalists add some amendments to the Constitution as a condition to its ratification by all parties. The main concern of the opponents to the Constitution was indeed the protection of individuals against the ill effects of a strong government: and so was joined the national Bill of Rights (the ten first amendments to the Constitution). What is protected by these amendments are the “natural rights” of the people, concerning liberty and property, that are an intrinsic sphere common to all men over which no one or nothing can have power. For a long time, Anti-Federalists have been seen in America simply as opponents to the Constitution and supporters of localization4 . But since some ten years ago, their importance as “founders” has come to light again, and indeed they can also be perceived as the spokesmen for an important alternative heritage to the Constitution. As a matter of fact, the adding of the Bill of Rights is their most remembered legacy. The story of the 'right to bear arms' and militias During the colonial era, militias were deemed necessary to public safety. Anti-Federalists welcomed this idea, for several reasons: because they believed that the citizens should be active, because they were suspicious of all kinds of specialization, especially in two fields: first, politicians, who would have for only experience to sit behind a desk all their lives (the Constitution did not impose term limitations), and so they would not have the same realities as a commoner, and they would never be subject to their own laws; secondly, soldiers and officers, who could promote their own self interests. Anti-Federalists feared the emergence of a “military-industrial complex”. And most of all, because they did not like the idea of a standing army in time of peace, deemed dangerous and unnecessary. Therefore, one could say that militias were, in the end, the military equivalent of juries for the legislative. Again, for both cases, this was the expression of the general idea of local inhabitants keeping checks on central officials5 . 4 But Anti-Federalism views are not to be confused with Libertarian ones: even if they present common points (ie the strong opposition to federal government), the Anti-Federalists fear only a strong federal government, and do not oppose state or local government action; whereas Libertarians are advocating a very reduced – or even non-existent – state. 5 Akhil Reed Amar, “Anti-Federalists, The Federalist Papers, and the Big Argument for Union”, Harvard Journal of Law & Public Policy, vol. 16, n°1, 1993: 114-115.
  4. 4. But let us see the practical issues relating to militias, during the Independence War (1775-1783): militias were becoming expensive, as they wanted always higher bribes to stay and join in the common effort. Within the 1777 Articles of Confederation was a clause stating that every State shall keep a disciplined and armed militia, with proper equipment6 : “[…] every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” When the Civil War broke out (1861-1865) between Southern and Northern states over the issue of slavery, huge military forces were involved, and after the war all soldiers could go home with their guns. Then, thousands of households had a gun, and in addition the gun industry had flourished during the war, so guns had become easily affordable products for anyone. But during the post-Independence War period, apart from a few skirmishes with Indians, there was no real enemy to be defended from, and so militias did not bother to learn how to correctly use a gun. The right to bear arms did not have at that time the same importance, so there were no real problems (not like nowadays). Even though they had to remain well-trained, this was not the case, and they were less and less organized than the regular army, as well as not always reliable upon. In the original scheme of the Constitution, the reason for gun ownership was the very existence of these militias. Their aim was the protection of democracy against any hostile group (foreign powers especially), therefore demanding a certain devotion on the part of citizens, through the form of protective militias. They were meant to forge a common consciousness. However today, gun ownership has become a rather individualistic right, and one could pose the problem of its relevance in our age, which we will discuss later on. Today, there are two types of militias: official ones and unofficial ones. Official militias, seen as necessary to defence and public safety in times of trouble, are the armed forces of the State, namely the National Guard (Air and Army) and the Naval Militia for some states. Their specific origin is found in the Militia Acts of 1792, enacted by the second United- States Congress; then another Militia Act of 1903 was adopted after the Spanish-American war of 1898, and in which the term of National Guard saw the light, as well as that of “unorganized militias”, which is the unofficial type of militia. They consist of all those members of the militia that are not part of the National Guard or the Naval Militia: they are private individuals. These groups started really mushrooming since the 1990s, and in fact this resurrection of the concept of militia in modern times has very little little to do with the defence duties of the original concept. In short, they 6 Article 6 of the Articles of Confederation of 1781 (they took several years to be ratified and be implemented).
  5. 5. claim to defend the Constitution, consider themselves as patriots and don't trust the government. In truth, they are more comparable to private paramilitary groups. The relevance of the Second Amendment today The right to bear arms and militias is protected in the Constitution by the Second Amendment, since its drafting up to today: “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.” This sentence in itself is not crystal clear: some argue it simply means that the right to bear arms of every citizen will never be infringed, while others see that it is the right of the States to keep the mentioned militia. As in many old laws and texts in general, from Constitutions to religious texts, the issue often come from interpretation. But the more obscure part of it is due to the historical context of its writing: now that it has changed, we cannot understand it the same way as before. We know that in the early days of the United-States, one of the main concerns (especially of the Federalists as we saw) was the lack of common and strong military forces. A standing army being expensive to fund and maintain, one can only think that this Amendment was also agreed by the Federalists because it compensated somehow for the lack of real common forces. Therefore it saved some trouble for the Federal government, and all the while ensured to the Anti-Federalists that the citizens could be armed and defend the country as would soldiers do, but as they were citizens they would not have the same selfish interests as soldiers and officers would. Therefore the “military-industrial complex” would be avoided. But the meaning must have been obscure on purpose, since armed militias or armed individuals were linked. Therefore, since the historical context played a great part in this amendment, is it still relevant in our modern context? This very right to bear arms cannot be applied in the same manner as it was three centuries ago when this law was written. Three centuries ago, the country was young and starting only to acquire its strength. But the context has changed since then, and these initial goals have become void: the federal government not only has an army, but also has more technological weapons than just rifles, such as missiles and tanks. Knowing the powerful American military forces, it is a bit derisory to think that the Second Amendment stands for a compensation to the lack
  6. 6. of military means. And since the American army is well more powerful than the American population, to think of the Second Amendment as a “firewall” against potential tyranny of the State is, there too, slightly wretched. Now, the only practical effect this amendment can have is indeed to be used as an individual protection against attacks of individual criminals, or worst, against fellow citizens, as we will see in some cases. Either way, this is a very individualistic goal indeed, compared to the initial one aiming at raising national consciousness and devotion for the protection of the country. Another factor to take into account would be the size of the population, which has greatly grown over the centuries: the population of the 13 colonies was of 250,000 in 1700, 2.5 million in 17757 , and today it is of 315.7 million8 . Two million citizens cannot be ruled in the same way than 300 million, since inevitably social relationships become more complex between people of different backgrounds: therefore, the law needs to be regularly revised as well for the continuity of the well- being of social life. In the end, the right to bear arms and to form militias seem a matter of keeping at all costs what is left of the Anti-Federalist tradition and beliefs, but it is misplaced now. Anti-Federalists, at the time of the drafting of the Constitution, did not welcome the fact that they would vote for someone they did not know. What they would have preferred would have been to have smaller and more legislative districts, with possibly a rather homogeneous population in order to achieve “public good”. We can well see that this is not the case in the country, which contains many ethnic communities. In any case, such a right that has become so individualistic is rather dangerous in a country with this high a population, where, rather than defend the country together, people tend to fear their unknown neighbour. But it is part of the Bill of Rights, and this Bill of Rights was designed to protect natural rights. Even if those rights might have evolved with time, altering an amendment from the Bill of Rights would still mean a lot symbolically: that it is, in the end, not protected from any kind of modification as we thought, thus eventually leaving room for a tyrannical state to emerge and act above all citizens' rights. Many Americans see their Second Amendment as one of the last firewalls they have against government's tyranny9 . But of course, this reasoning is a “slippery slope”: saying that doing something will have, in a snowball effect, disastrous consequences. This “chilling effect” argument is actually a fallacy, nevertheless it is how many people perceive the whole affair. Indeed, no one can certify at a hundred percent that such consequences won't ever happen; but 7 James T. Lemon (contributor), “Colonial America in the Eighteenth Century”, North America, The Historical Geography of a Changing Continent, by Thomas F. McIlwraith and Edward K. Muller, 2nd edition (Rowan & Littlefield Publishers, 2001), 119 8 United-States Census Bureau <http://www.census.gov/> 9 Gun Debate 'Live' on Fox News, 12 Jan. 2013
  7. 7. more certainly no one can certify either that it will happen. As a counter-argument, it is possible to advance the fact that many other Western countries have restrictive laws concerning the bearing of arms, and none of them are totalitarian governments; and most of all, none of them have the same death rate caused by guns as the United-States'10 . The powerful position of the NRA The National Rifle Association was originally created at the aftermath of the Civil War as a sort of shooting club; but since the 1970s, it became one of the most important lobbies of the United- States, keeping alive in people's minds the idea that owning a gun is a fundamental right – something hard to argue with since it is written (more or less clearly) in the Bill of Rights – but also promoting gun-ownership as something glamorous: this has harmful effects on all the awareness campaigns concerning the delicate use of guns. The NRA is so powerful that it has managed to defeat all attempts by Congress to legislate on the matter: even though American citizens are angry at the government's inability to limit gun violence, the NRA either wins a majority of votes against gun restrictions, either assures loopholes allowing gun-lovers to buy and use guns. Once again, we see that gun ownership has gone from an idea of common protection of freedom and democracy for citizens against the State and hostile foreign powers, to an idea of individual protection against all kinds of criminals, or even to a simple idea of fun sports. Since many years now, the United-States have seen a rising of shooting rampages throughout the country, killing thousands of innocents, and this showed repeatedly that the existing gun restrictions were ineffective (due to many loopholes as we already mentioned, as well as bad coordination between the different State administrative services, as we will notably see with the case of the Virginia Tech massacre); still, the NRA manages to pressure the government so as not to implement effective laws. The few times such attempts appear, they are received with arduous reactions from the opponents: the recent demand, in January 2013, of President Obama to Congress to pass new laws instituting universal background-checks and 23 reasonable limits on assault weapons and high- capacity magazines was seen as outrageous, notably by the NRA who launched a campaign against the President. But those measures are not even tough, such as, for instance, the launching of a national safe and responsible gun ownership campaign (n°7) and of a national discussion on mental 10 We can take the examples of Australia, which has a percentage of 11,5 for homicides caused by firearms; France, with 9,6%; Northern Ireland, with 4,5%; England and Wales, with 6,6%; Finland, with 19,8%; Germany, with 26,3%; all these compared to the United-States' percentage rate of 60. (Simon Rogers, “Gun homicides and gun ownership listed by country”, The Guardian, 22 July 2012) <http://www.guardian.co.uk/news/datablog/2012/jul/22/gun-homicides-ownership-world-list>
  8. 8. health (n°23). But “Guns don't kill people. People kill people.” claim the NRA. There is no need to go against this statement: it is well because people kill people that it should not be that easy for anyone to acquire a gun, because not everyone is trained for it. Bearing a gun being a right, it carries like any other constitutional right some duties and responsibilities. The NRA's catchphrase is very dangerous because it gives an innocent aura to guns and thus tarnishes all efforts made to educate on gun violence (but other influences are to take into account, like movies). Of course violence in itself will not disappear; then again, it may become less easily accessible: let us not forget that, unlike other everyday-life objects surrounding us, guns were created in this very purpose of extermination. And unlike many other defence tools meant only to defend, this one actually has the power to kill. Now, not everyone carrying a gun is a criminal, and often guns are brandished only to scare off attackers. This point gives ammunitions to the NRA, who says that taking guns from law-abiding citizens would only leave them more vulnerable to armed assaults from criminals. But there is only a thin line to step across between a tense scaring display and a situation going out of control. To defend one self is good, but there are other ways to do so, and the too easy access to guns may simply increase the risks of having potential attackers everywhere, hence the crucial need of better background-checks and restrictive laws concerning gun ownership and selling. It is not by arming everyone in a society that it will be safer: everyone will instead be living in a constant climate of fear of one another, not daring to raise the voice on something that we dislike by fear of triggering a cowboy-like duel – indeed, shootings over trivial incidents are not uncommon, something about which the NRA does not brag11 . At this point, it would be hard to say that gun ownership is a contemporaneous form of Anti- Federal social practice. This very right had been laid out by Anti-Federalists in the 18th century, so of course it is still linked to them historically speaking; but if we look at the facts of today, we see more problems between citizens than a cooperation between them, which was not the Anti- Federalist goal. The whole gun control issue has quite changed of direction: now it feels more like a desperate call of gun-lovers (a term that expresses well how their will is different from that of their Anti-Federalists ancestors) to keep their private belongings. Where gun ownership was linked to responsible protective militias, now it means only private use for protection of the nuclear family – when it is not, for some fragile persons, personal use for getting a revenge on society, as we will see with particular cases. 11 Like, in the 2000s, a shooting happening in a karaoke bar over poor performances of a song (Michael Perry, “Massacre sparks foreign criticism of U.S. gun culture”, Reuters U.S., 17 April 2007) <http://www.reuters.com/article/2007/04/17/us-usa-crime-shooting-world-idUSL1752333820070417>
  9. 9. Anti-Federalism and individualism Even though the Federalist government has more power than before the Civil War, nevertheless every state still has its own way of dealing with laws – like those concerning guns. For instance, Texas is the only state where it is lawful to use a gun in case of theft, whereas most of the other states forbid it unless the victim or a member of his family is under death threat. Generally speaking, gun owners believe their security is more ensured when they are with their weapon, in order to protect themselves and their own families. Anti-Federalists were not opposed to individualism. They wanted a fairer government towards all classes of citizens, and militias were indeed aimed at forging a common consciousness; though they did not advocate for a country where everyone thought of the common interest first before their own. The Anti-Federalists' idea of republican government was greatly influenced by Montesquieu as we have mentioned, though they had in mind a less “communist” view as that of the French thinker: they do not advocate restrictions on the right to personal wealth as Montesquieu does. What they sought was a government more republican than the Federalists' concept, but less than Montesquieu (“The end of government for Brutus and The Federal Farmer is not so hostile to the individualism of the “pursuit of happiness” as was Montesquieu’s small, and morally severe, republic”12 ). Individualism in America today, an important aspect its society, is closely linked to the concept of self-reliance13 . According to this, people should not listen to the conformism of the rest of society and not remain silent for fear of being proud: all individuals have a power of their own, and should be proud of the genius inside them. Everyone can act in the way they want and that they deem good. Being confident is something laudable; though theoretically, since everyone follows his own truth, we therefore face a lack of common purposes at some point, and the loss of a sense of a bigger community for which individuals want to be active. That is why early Anti-Federalists had favoured smaller and rather homogeneous communities, so that these personal values don't become an obstacle to the achievement of collective action. This is one of the paradoxes of the United-States. People are (or became) very individualistic – and we saw that the approach to guns has not been spared from this phenomenon – but all the while, American people are truly patriots, and proud of their country. Patriotism refers to the sentiment of belonging and devotion to one's country; however Anti-Federalists mistrust the institutions of their country, and for instance their gun use has shifted from devotion to the country to personal use 12 Murray P. Dry, “Anti-Federalist Political Thought: Brutus and The Federal Farmer”, History of American Political Thought, ed. Bryan –Paul Frost and Jeffrey Sikkenga, (Lexington Books, 2003) 13 A term first introduced by the American writer Ralph W. Emerson in 1841 in his essay of the same name: “Trust thyself”, said he.
  10. 10. against isolated attackers. Anti-Federalists love their country, but not in a way where everyone can trust everyone else and therefore rely on one another, through a specialization of labour, as is the vision of Federalists. They love their country, but from the point of view of a rather entre-soi environment. When doing one's duty of protection becomes dangerous to others: The Trayvon Martin Case On February 26, 2012, in a gated community of Sandford, California, a 28-year-old man shot down a 17-year-old boy. George Zimmerman, a Hispanic American, had been appointed neighbourhood watch coordinator of the community; prior to this date, a series of break-ins had occurred in the neighbourhood, therefore everyone was tense. While driving to a grocery store, Zimmerman saw a hooded Black teenager walking casually in the street under the rain, whom he dd not know; his attitude looked suspicious to him. The teenager, Trayvon Martin, got anxious at seeing a man observing him from his car, and started running. Zimmerman called an non- emergency line of the police to report the boy who was “up to no good”, and after fearing of losing his track, he got out of the car, whereas the police asked him not to follow him. When Martin was going to get into the town house where he was staying with his father, an altercation started between the two men – though it is hard to tell which of them started it –, then a fight followed, and Zimmerman finally shot Martin in the chest. It has been widely publicized throughout the country and abroad, dividing people over this issue14 . Whether the assault was one motivated by racist thoughts or not, whether Zimmerman was genuinely concerned by the fact that the boy could break into a house and have the feeling of doing his duty of neighbourhood watch, all of this could have been avoided if Zimmerman had not had a gun. Even when we are reasonable people, we remain human; and to err is human. No one is immune to a false judgement and rapid conclusions, so having a deadly weapon available in such times is dangerous. Zimmerman was alarmed by an unknown teenager walking under the rain, and for this he followed him and scared him and the situation got out of control – like we previously said, the line is thin between a situation of tension only and dreadful acts happening. And the facts themselves were really not alarming: anyone has the right to walk, dressed the way they want, under the weather they want, without having to be prey to suspicion from others. But Zimmerman, giving the 14 Besides gun-control in itself, this case also launched another discussion on the merits of the “Stand Your Ground” law, which allows people to use their guns whenever they feel a reasonable threat of heavy injury or death.
  11. 11. circumstances of the period, got anxious and the violence escalated. Anyone could have done such a mistake, but no one would have had killed him if not armed in the first place. Neighbourhood watches, which are groups of citizens devoted to prevent crimes in their neighbourhoods, could be viewed as a type of militia. Those militias however are less “extreme” in so far as their members are not encouraged to intervene, but to alert the police. But they remain an organized group of persons with the aim of protection of a community. We go back, with such entities, to the roots of Anti-Federalism yearning to protect their communities themselves, with people they know of. Such a concept of crime prevention is good; but it has its down-sides. After all, it means that a suspicious act or attitude depends on the watch member's system of representations: eventually, any stranger will have to justify himself for being where he is, and this only helps fostering a climate of suspicion and of entre-soi even more. And in this respect, the right to bear arms does not help either: carrying a gun procures us with a sort of security, whereas in reality anyone with a gun (especially non-professionals) becomes automatically a potential threat. Here, in neighbourhood watches too it is possible to assist to slips where the “protective” members will allow themselves to abuse of their position of power and not defend, but attack innocent people. Under cover of the protective aim of such groups, some members will act in a way that is in reality not consistent with the basic concept, and in this respect modern militias are sometimes seen as paramilitary groups – claiming to defend the Constitution, whereas they are only groups of terror. This Trayvon case – as the similar one of Eliyahu Werdesheim beating a Black teenager after receiving a call from a neighbourhood watch group member, in 201015 – show that even good-intended militias have their down-side, since individuals are unpredictable16 , even the people that we know: we all make mistakes, though not having a gun would at least prevent from making fatal ones. The problem of too many slips and mass shootings Recently at the beginning of this month of June, a man has been condemned to 10 years of prison for having unintentionally killed someone17 . This very man was about to drive to work, when he 15 “ Eliyahu Werdesheim convicted in Md. Neighbourhood watch beating case”, CBS News, 4 May 2012 <http://www.cbsnews.com/8301-504083_162-57427908-504083/eliyahu-werdesheim-convicted-in-md- neighborhood-watch-beating-case/> 16 About this, we can mention the case of Timothy McVeigh, an ex-Army soldier and security guard who, in 1995, planted around 2.000 kilogrammes of explosives in a federal building in Oklahoma City, killing 168 people. It was the worst act of home-grown terrorism in the nation's history according to the FBI. (“Terror Hits Home: The Oklahoma City Bombing”, The FBI's official website, <http://www.fbi.gov/about- us/history/famous-cases/oklahoma-city-bombing>) 17 Jason Hanson, “Why He's Facing Up to 10 Years in Prison”, USA Carry, 7 June 2013
  12. 12. forgot something in his house; he left his car running in the driveway while he went back inside. When he came back outside, a thief had taken his car and was driving off the road; the owner pulled his gun and shot in direction of the car. But the tragic circumstances made the bullet arrive in the back of the thief's head, which is why the man is facing up 10 years of imprisonment. This story shows how stupid can be life sometimes, and that bad luck can have terrible consequences. Of course, the man did not mean to kill the thief; nevertheless he was not aware of his state's laws on gun use, and made his own rule rather than calling the police. He was not in a state of mortal danger, but still shot at the car. The punishment may be overrated, but maybe will it remind people not to pull the trigger too easily like in movies. Not everyone should be allowed to carry guns, especially in a society relying on a principle of self-reliance where anyone can do whatever he wants according to his vision of life: the sense of power that carrying a gun can procure is dangerous, even with someone not presenting any kind of serious mental or social problems. Giving someone direct power of life or death over others should not be taken lightly, and should be given to qualified and professionals only. But apart from errors of judgements or power drunkenness, sometimes people even do not look disturbed from the outside even though they are in their own world, and therefore have a seriously different vision of reality than the rest of the citizens. Allowing such people to carry guns is truly a public safety issue: The Virginia Tech Massacre On April 16, 2007, Seung-Hui Cho, a senior student of the State University of Blacksburg, Virginia, shot down 32 students and teachers and wounded 17 others, before committing suicide. Cho had previously been diagnosed with severe anxiety, and had presented symptoms of autism and depression since his childhood. He had been bullied during his schooling because of his communication problems, and at university his behaviour in class was reported as disturbing. He had also been investigated for harassing two female students. He had been ordered to seek, in 2005, an outpatient treatment since he had been declared by Virginia court to be a danger to himself. Therefore, he should not have been able to purchase guns in his condition, considering that background-checks in Virginia don't allow people with criminal background, as well as those adjudicated as mentally defective, to buy guns. Nevertheless, gaps between state and federal laws <http://usliberals.about.com/gi/o.htm? zi=1/XJ&zTi=1&sdn=usliberals&cdn=newsissues&tm=67&f=00&tt=2&bt=8&bts=8&zu=http %3A//www.usacarry.com/>
  13. 13. permitted him to purchase two of them, spaced of one month in time. The cause of the gap between laws might have been the fact that Cho had been qualified as “outpatient” and not “inpatient”, therefore not necessarily requiring to report it to the Virginia's Central Criminal Records Exchange so they can add him in the database. The James Holmes Case On July 20, 2012, in an Aurora movie theatre, Colorado, a gunman entered during a midnight screening of the movie The Dark Night Rises, and shot at 70 people, killing 12 of them. Holmes was an extremely brilliant neuroscience student. He was a reserved and shy person as many other people, and was described in a recommendation letter to the University of Illinois as having a “great amount of intellectual and emotional maturity”18 . He then went to make his PhD at the University of Colorado, in Aurora. But during the year 2012, his performance declined and he dropped out of university after having failed an important oral examination in June. He appeared to have psychological problems (he had met with three mental health professionals at his university before the shooting19 ), and some of his entourage had suspected he suffered from mental illness. It is during his failing academic year that he started purchasing guns, one of them just after his failed oral examination. Once arrested and put in jail, he also attempted to commit suicide. Like with many other internationally publicized US shootings, these cases showed the dysfunctions in the administration which lead to ineffective restriction laws concerning guns. It has attracted criticism from foreign politicians about the US gun culture20 , notably from Australia, which has introduced strict laws on the right to bear arms since their own mass shooting of 199621 . Cho was a disturbed man, who had not been helped correctly. He had nourished an ever- increasing hatred of society, especially the wealthy, who had made fun of him all his life (as he stated himself in one of the 28 recordings he had sent to NBC News just before his deadly rampage). He had gotten so much caught into his own painful world and fantasies that he had ended up comparing himself to the Christ, as a martyr, for the greater cause of the oppressed: “Thanks to 18 “Man Accused in Colo. Shooting Was Accepted to UIUC”, NBC Chicago, 19 Aug. 2012 <http://www.nbcchicago.com/news/local/Man-Accused-in-Colo-Shooting-Was-Accepted-to-UIUC- 165807536.html> 19 Rick Sallinger, “James Holmes saw three mental health professionals before shooting”, CBS News, 21 Aug. 2012 <http://www.cbsnews.com/8301-201_162-57497820/james-holmes-saw-three-mental-health-professionals-before- shooting/> 20 Michael Perry, “Massacre sparks foreign criticism of U.S. gun culture”, Reuters U.S., 17 April 2007 <http://www.reuters.com/article/2007/04/17/us-usa-crime-shooting-world-idUSL1752333820070417> 21 We shall come back to the comparison between Australia and the United-States later on.
  14. 14. you, I die like Jesus Christ, to inspire generations of the weak and the defenceless people.”22 He had a desperate feeling that it was the only option left for him. As for Holmes, a sudden and important failure in his life thus led to the massacre of innocent people, because of a fragile subject. These two persons did not have the same representation of reality as their other fellow students anymore, however, following the Second Amendment, they had a right to bear arms. Giving them the opportunity to possess a gun, such a powerful weapon, was a mistake avoidable by banning the carrying of firearms. No one can be immune with absolute certainty to big life challenges, and we do not know if our own mental health would be resistant or not under such shocks. With such events happening, maybe it would be the time to reconsider the place of the Second Amendment in the 21st century, since its goal has well drifted from its initial Anti-Federalist one. Conclusion: We saw that historically, the right to bear arms and militias are of Anti-Federalist descent: it was them who contributed to implement this right through one of the ten amendments to the Constitution, in order to protect citizens against their own federal government. After the bad memory of British government's abuses, the Anti-Federalists were indeed anxious to see a too strong federal government, which would have the power to eventually lead to non-Republican policies. Therefore, militias and gun ownership were both a means to give to citizens a certain power that the government would not have – at least not entirely – and thus, a means to forge a collective consciousness and devotion for the protection of the country. That is, a protection against foreign powers' attacks, or against US government's abuses. This protection was made possible through militias, which actually were the main reason for gun ownership. But individualism is now a major principle of the American society, and as such the right to bear arms has become a rather individualistic phenomenon – when it does not lead to offensive attacks against a large number of people. In the same way, militias don't all have nowadays the same purpose as before, which was for collective security, and now tend to be of a more paramilitary standing. In the end, gun ownership and militias may not be as relevant as in the 18th century, where historical conditions were much remote of the United-States' contemporary context; it even causes many internal problems in the country, rather than securing social life. Maybe a few alterations to the Second Amendment would not be a bad thing. 22 “In quotes: Virginia gunman's message”, BBC News, 19 April 2007 <http://news.bbc.co.uk/2/hi/americas/6570369.stm>
  15. 15. Bibliography: Fichaux, David. Definitely British, Absolutely American!. Paris: Ellipses, 2011 Lemon, James T. (contributor). “Colonial America in the Eighteenth Century”. North America, The Historical Geography of a Changing Continent, by Thomas F. McIlwraith and Edward K. Muller, 2nd edition, Rowan & Littlefield Publishers, 2001 Amar, Akhil Reed. “Anti-Federalists, The Federalist Papers, and the Big Argument for Union”. Harvard Journal of Law & Public Policy, Vol. 16, n°1, Cambridge, Massachusetts: 1993 Emerson, Ralph Waldo. “Self-Reliance”. 1841 Dry, Murray P. “The Constitutional Thought of the Anti-Federalists”, in This Constitution: A Bicentennial Chronicle, Project 87 of the American Political Science Association and American Historical Association (Fall, 1987) 10-14 Dry, Murray P. “Anti-Federalist Political Thought: Brutus and The Federal Farmer”. History of American Political Thought, ed. Bryan –Paul Frost and Jeffrey Sikkenga, Lexington Books: 2003 Websites and on-line articles: Cornell University Law School's website <http://www.law.cornell.edu/uscode/text/10/311> The Avalon project. Lillian Goldman Law Library, Yale Law School <http://avalon.law.yale.edu/18th_century/artconf.asp> United-States Census Bureau's official website <http://www.census.gov/> “Terror Hits Home: The Oklahoma City Bombing”. The FBI's official website, <http://www.fbi.gov/about-us/history/famous-cases/oklahoma-city-bombing> “ Eliyahu Werdesheim convicted in Md. Neighbourhood watch beating case”. CBS News. 4 May 2012 <http://www.cbsnews.com/8301-504083_162-57427908-504083/eliyahu-werdesheim- convicted-in-md-neighborhood-watch-beating-case/>
  16. 16. Rogers, Simon. “Gun homicides and gun ownership listed by country”. The Guardian. 22 July 2012 <http://www.guardian.co.uk/news/datablog/2012/jul/22/gun-homicides-ownership-world-list> Zornick, George. “Sixteen US Mass Shootings Happened in 2012, Leaving at Least 88 Dead”. The Nation. 14 Dec. 2012 <http://www.thenation.com/blog/171774/fifteen-us-mass-shootings- happened-2012-84-dead> DeLuca, Matthew. “Why gun groups say 'no way' to assault weapons ban”. NBC News. 16 Jan. 2013 <http://usnews.nbcnews.com/_news/2013/01/16/16544310-why-gun-groups-say-no-way-to- assault-weapons-ban?lite> Perry, Michael. “Massacre sparks foreign criticism of U.S. gun culture”. Reuters U.S. 17 April 2007) <http://www.reuters.com/article/2007/04/17/us-usa-crime-shooting-world- idUSL1752333820070417> Hanson, Jason. “Why He's Facing Up to 10 Years in Prison”. USA Carry. 7 June 2013 <http://usliberals.about.com/gi/o.htm? zi=1/XJ&zTi=1&sdn=usliberals&cdn=newsissues&tm=67&f=00&tt=2&bt=8&bts=8&zu=http %3A//www.usacarry.com/> “Man Accused in Colo. Shooting Was Accepted to UIUC”, NBC Chicago, 19 Aug. 2012 <http://www.nbcchicago.com/news/local/Man-Accused-in-Colo-Shooting-Was-Accepted-to-UIUC- 165807536.html> Sallinger, Rick. “James Holmes saw three mental health professionals before shooting”. CBS News. 21 Aug. 2012 <http://www.cbsnews.com/8301-201_162-57497820/james-holmes-saw-three-mental- health-professionals-before-shooting/> Michael Perry, “Massacre sparks foreign criticism of U.S. gun culture”, Reuters U.S., 17 April 2007 <http://www.reuters.com/article/2007/04/17/us-usa-crime-shooting-world- idUSL1752333820070417>