Right to own guns

CHICAGO MAYOR RICHARD Daley speaks at a news conference on July 1. He introduced what is said to be the most comprehensive gun ordinance in the United States.-M. SPENCER GREEN/AP

The controversy on gun ownership is bound to obfuscate a fundamental issue, namely, the threat to ordinary U.S. citizens from unrestricted gun availability.

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.

Second Amendment to the Constitution of the United States of America adopted in 1791 as part of the U.S. Bill of Rights

Common sense tells you we need fewer guns on the street, not more guns.

Mayor Richard Daley of Chicago on the Supreme Court ruling ( McDonald vs Chicago) in favour of an individual's right to hold guns

In a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.

President Barack Obama on the choice of a new Supreme Court Judge

WHILE the Founding Fathers of the United States may not have been all that clear when they put down what they believed should be the sacred objectives of the new nation, the strong Chicago Mayor and a resolute U.S. President could not have been more lucid in highlighting one of the major dilemmas that face their nation. A liberal President may be in control of the White House, but he has to contend with the conservative majority in the Supreme Court, a body that does not miss any opportunity to assert its enormous authority vis-a-vis an ideologically impatient President. It is not as if the conservative section in the court is so huge as to be capable of embarrassing a President desperate to push through an undisputed liberal agenda.

The traditionalists in the highest court of the land have a slender lead of one, which makes all the difference. The balance will remain delicately poised until Obama gets a chance to send to that court a trusted liberal to replace one of the five stridently conservative judges who sit on it. When the President's latest nominee, Solicitor General Elena Kagan, a former Harvard Law School Dean, takes her place after the expected Senate ratification and the court reconvenes following the summer recess, she will be replacing only another liberal, Justice John Paul Stevens, who has announced his decision to quit the Bench at the end of the current session. There is no indication as to when Obama will get a chance to send to court another judge who shares his liberalism.

None of the sitting conservatives (Chief Justice John G. Roberts Jr, and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr) seem to have any plans to call it a day (U.S. Supreme Court judges are appointed for life). The President will, therefore, have to rely heavily on the support of the conservative quartet, namely, Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, the last new entrant, who is, incidentally, from the large Hispanic community. It is against this backdrop that the sensational Supreme Court ruling on the right to own guns by U.S. citizens came on June 28.

The five-four decision delivered by Justice Alito, which will go into court records as McDonald vs Chicago, is categorical that the Second Amendment protection of self-defence and the right to bear arms offered to citizens by the U.S. Constitution extends to State and local government laws and not merely federal legislation, as was believed earlier. Of course, the court did not directly overturn the challenged Chicago ordinance of 1983 banning handgun ownership.

A saving grace was also the court's acknowledgement that the Second Amendment did not confer a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. It recognised in passing that there were acceptable restrictions on gun ownership. These were in respect of those with a criminal record and those with a mental illness. Further, carrying guns into some sensitive places such as schools and government buildings could still be lawfully banned. Notwithstanding this caveat, the implications of McDonald vs Chicago were far reaching and would mean that the impugned Chicago ordinance and similar laws elsewhere in all the States would have to pass a fresh test of constitutionality.

Gun control has always been a contentious issue in public debate in the U.S. for most part of the century that has passed by. It remains so because of the considerable numbers dying from gun violence. Both the trial court and the 7th Circuit Court of Appeal had upheld the validity of the Chicago ordinance that banned individual ownership of handguns, even for the purpose of self-defence at home. The petitioners in the case went on appeal to the Supreme Court.

Not surprisingly, the hyperactive National Rifles Association (NRA), the staunchest opponent of any restrictions on gun ownership/possession, joined in the appeal with a separate petition. The litigation attracted nationwide attention because of the crucial issues involved and the enormous strength of the gun lobby led by the NRA, which could claim several past U.S. Presidents as its supporters. The petitioners were rightly optimistic that they would win because of the Supreme Court's ruling in District of Columbia vs Heller (2008), a case in which the D.C. administration's total ban on handguns was challenged.

In that instance the Supreme Court was categorical that the Second Amendment protection of self-defence was an individual right like the rest of the Bill of Rights, and hence the ban could not be sustained. But then there was a difference. In the Heller case, the ruling was against a federal law, the District of Columbia being a federal entity. As against this, the Chicago law pertained to a State, and the commonly held view, until the McDonald ruling was that the Bill of Rights afforded protection only against a federal Act. McDonald vs Chicago has now disabused observers of any notion that citizens could agitate only a federal law that violated the Bill of Rights.

In effect, the latest ruling sets a new precedent that will be discussed in many powerful forums, one that could go back to the Supreme Court in some form or the other. The White House will not be wholly unhappy at such a development, particularly in the context of the fact that four of the nine judges had dissented. The latter maintained, in the course of endorsing what Justice Stevens wrote on their collective behalf, that even the Heller decision pertaining to the District of Columbia was incorrect. They added that they would not be party to extending the Heller protection to State and local laws.

More significant was Justice Stevens' own statement for the dissenters in the judgement: the consequences could prove far more destructive quite literally to our nation's communities and to our constitutional structure.

(Interestingly, Elena Kagan, during the Senate confirmation hearing on the very day the Supreme Court gave its ruling in the McDonald case, told the committee that she would respect the ruling which had become a law of the land and that she would not mess around with it. The NRA would not, however, trust her. It continues to plead with the Senate that Kagan should not be confirmed.)

Many experts, however, do not look upon the McDonald judgment as an unmitigated disaster. For instance, Prof. Jack M.Balkin of the Yale Law School says that what will attract adverse judicial attention in future is the ban on the use of handguns at home for self-defence. Other less draconian and reasonable firearm regulations could still pass muster.

The legal hair-splitting that accompanies the controversy with regard to ownership of guns is bound to obfuscate a fundamental issue, namely, the threat to ordinary U.S. citizens from unrestricted gun availability. Homicides with the help of guns are substantial, especially in cities like Washington, D.C., Chicago and Philadelphia. According to one estimate, firearms are responsible for about 60,000 deaths or injuries to persons annually.

Ironically, the McDonald decision is blind to the fact that in 2009, in the Chicago area alone, 258 public school students were shot at. Of these, 32 died. In the country as a whole, 72 per cent of the more than 14,000 homicides during 2008 were committed with the help of firearms. These statistics alone made it clear that any lopsided and strict constructionist view of the need to protect a citizen's fundamental right was preposterous.

The scene in India is just now not alarming. But the involvement of firearms in many crimes is slowly rising despite a very restrictive licensing regimen. Many rich and influential men in society seem to get gun licences with relative ease. The infusion of politics and money into the licensing process is suspected. We have to be on our guard if we are not to go the American way.

The proposal to allow private security agencies to carry firearms is welcome in the context of the increasing inability of the State police to extend protection to the private sector and individuals in troubled areas.

As things stand, this will be on an extremely selective basis. We must, however, remember that this move is fraught with fearsome consequences unless the screening of agencies is clinical and transparent and strictly on a need basis. In sum, prudence demands that we hasten slowly.