The carrying of weapons in the United States, between right and duty

In a school (Uvalde), a high school (Columbine), a university (Virginia Tech)… But also in a cinema in Colorado, in the New York subway and even on a military base in Texas: the killings by firearms are have been producing anywhere and anytime in the United States for the past 2021 years. Why ? In XNUMX, psychiatrists carried out a study that came to confirm an extremely common diagnosis "These killers are all completely sick!" They are, indeed, and more precisely: schizophrenic, bipolar, borderline, etc. Sick and untreated. Sick and armed.

Each killing then asks two questions. The first, very complex, is that of Americans' access to psychiatric care, in particular to screening devices. The second, now well known to the general public, is that of the omnipresence of firearms in the United States. And we give for explanation the second amendment to the United States Constitution, which guarantees, or would guarantee, everyone the right to carry a firearm, an amendment championed by the powerful NRA lobby, the National Rifle Association, which effectively prevents anyone from legislating to prevent further carnage. So nothing changes.

American love for guns

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

“The cycle seems unchanging: killings, widespread emotion, strong demand for legislative change, congressional inaction. »

Even if this time Republicans and Democrats finally managed to come to an agreement, the new measures envisaged (providing, among other things, for stricter controls for people aged 18 to 21) would solve only a third of the problem, according to the calculations of New York Times.

However, a lobby as powerful as the NRA does not owe its weight to chance. Americans love firearms like the French love wine: they are interested in their production, their particularities and they like to use them. Each weapon thus has its terroir. Let us remember that in the spring of 2020, during confinement, wine merchants remained open in France, while in the United States, it is the armories which were considered "businesses of first necessity".

A recent study of the very serious Pew Research Center tell us more about this american love for guns. First, it is much less unconditional than one would like to believe. Secondly, the question of the carrying of weapons is today extremely politicized. Let us give as an example the assertions of the famous chronicler of Fox News Tucker Carlson for whom, after the Uvalde massacre and before the next midterm elections, Joe Biden's goal would be to disarm all those who did not vote for him ! In an extremely polarized political landscape, these incessant controversies prevent any debate, any consensus, any solution.

Could history then provide this solution? Certainly not, because as always, it is sinuous and subject to divergent interpretations. And it cannot be substituted for the work of the legislator. On the other hand, it can provide him with food for thought.

Legal battles, academic debates

In any case, history is already present in the debates.

In 2008, the Supreme Court of the United States had to rule in the case District of Columbia v. Heller, the outcome of which today determines the legislation on the carrying of arms throughout the country. On the surface, this case was simple: a police officer residing in the American capital lodged a complaint against the authorities who forced him to leave his firearm in the locker room after his shift, possession of a weapon at home being prohibited in Washington. In reality, the coup, very well prepared, involved an ordinary man who likes weapons because he saw them on TV and a think tanks very powerful conservative and ready to defend it, the CATO Institute. All this is told by Mr. Heller himself! But let's get back to judgment of the Supreme Court. As conservative judge Antonin Scalia explained:

“There is no doubt that, from the texts and from history, the Second Amendment gives an individual the right to possess and bear arms. »

What story would it be? From English history first of all, and more precisely, from that of the second English revolution (1689), which ended with the adoption of a Bill of Rights (in English Bill of Rights) proclaiming, among other things, that "Protestant subjects may have, for their defence, arms conforming to their condition and permitted by law".

The story is often present in US federal courts; historians can also introduce it by writing memoirs ofamicus curiae (“friends of the court”), in which they put their knowledge at the service of justice, or more exactly, at the service of one of the parties involved. In the case Heller, a recognized legal historian supports the thesis which was to be taken up by Judge Scalia. In a memoir of about forty pages, Joyce Lee Malcolm affirms that the right to possess and carry a firearm in all circumstances is indeed an English right, an individual right.

Conversely, a dozen other equally renowned constitutionalists and historians argue that the right to bear arms is a collective right, which can only be exercised legally within the framework of a state militia, a militia whose very existence is optional according to them.

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 since it is English is surprising. It stands up poorly to the test of American history, which begins with a revolution happily repealing Her Majesty's laws.

In addition, in the XVII^e and XVIII^e centuries, this English right was strictly framed: it was individual only for the members of a agrarian elite, the only ones authorized to possess a weapon to hunt. As for the English militias, their members were chosen, trained and armed by this same agrarian elite hunting for its pleasure. Thus the weapons of these militiamen could either be kept by their supplier, or entrusted individually to those who had to learn how to handle them. But defending the Crown was more of a duty than a right.

But in the English colonies in North America, the future United States of America, this relationship between duty and right became more complex. Why ? We must bear in mind the particular circumstances in which these settlers found themselves: the need to hunt in order to survive, the need to be able to defend themselves, the distance from London... The duty to defend others was then confused with the individual right to own a firearm. Thus emerged a kind of ambiguous “duty-right” for us today but perfectly coherent in the spirit of the legislator of the time. Each colony therefore passed laws stipulating that white and free men, generally between the ages of 16 and 60, should serve in the local militia. with their own weapons and their own ammunition. Very early in their history, the Americans were armed as much by obligation as by necessity.

The American Revolutionary War had the effect of tipping the scales ever so slightly in favor of obligation. Take Virginia for example: in its Bill of Rights of 1776, it is affirmed in article 13:

“A well-regulated militia, composed of the whole people trained in arms, is the proper, natural, and sure defense of a free state. »

Independence gained, the Americans in 1787 equipped themselves with a new constitution which subordinated, at least in theory, the thirteen federated states to a new unified federal state. The debates for the ratification of this new Constitution indicate to us that the balance now tipped on the side of the right: Pennsylvania, New Hampshire and Massachusetts proposed to amend the Constitution to include in it a recognition of an individual right to possess weapons. .

Their immediate efforts were in vain, but in 1791 the Americans, whether or not they came out in favor of the new Constitution, were reconciled by passing a series of amendments called the "Bill of Rights". United States Bill of Rights), to recognize, among other things, this “duty-right” to possess weapons transcribed in the second amendment.

In 1803, St George Tucker, the publisher of the first American law textbook, observed that in England the mere fact of being armed could be held against you as an act of war, whereas in the United States, the right to bear a weapon being recognized by the Constitution, and no one would dream of leaving home without a gun or musket. The right to bear arms had become a distinctive feature of American identity.

What does the Second Amendment mean today? Is it still an effective means of ensuring the security of a free state? Would the scales tilt too much on the side of right, to the detriment of duty? It is up to the Americans and their representatives to answer these questions. History can only provide them with food for thought.

Ghislain Potriquet, Lecturer in American Studies, University of Strasbourg

This article is republished from The Conversation under Creative Commons license. Read theoriginal article.

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