America’s Gun Control Dilemma

America has just spent months deliberating over whether or not to increase controls on its citizens’ ownership of and commerce in firearms. For an Australian living in America this was a fascinating demonstration of the unique quality of American democracy. What to most foreigners seems a straightforward law-and-order policy judgment is, for America, a wicked dilemma in which some of the greatest ideas of the Enlightenment, of the likes of Edmund Burke and Benjamin Franklin, collide with the realities of modern technology and the domestic security norms that democracies now demand. In constitutionalising a guarantee of liberty, the Founding Fathers conceived a Frankenstein’s monster. Gestating since 1791, the monster now seems an indomitable challenge to the very society that created it. Two aspects of this rich conundrum remind me of the differences between our societies, histories and cultures, despite our unquestionably close friendship.

The first is the enormous problems a country takes on when it makes a conscious, codified decision to be an armed society, rather than simply to allow some citizens to possess guns. I believe that the armed society is now an immutable part of America’s political and social DNA—it can’t change. The test for America is to find a way to be an armed society in the twenty-first century while remaining a passable civil society: one in which civic life is not governed by fear. So far it is failing that test.

The second is how little Australians or most others in the West seem to understand the difficulty of the issue in the USA or, more importantly, the implications that our own approaches to the bearing of arms have for the quality of our respective democracies.

Trying to understand the American take on gun ownership is a journey that reveals numerous dark sides, inconvenient truths and ironies in both corners of the ring, and just as many misapprehensions in the understandings of outside commentators.

Consideration must begin with the Second Amendment to the Constitution of the United States—and it origins and purpose. The most important thing about the Second Amendment is that it exists, it says what it says, and it seems politically inconceivable that it will ever materially change. America is stuck with the Second Amendment—with being an armed society—and must learn to live with it.

Second Amendment orthodoxy holds that the right to bear arms is natural and inviolable, pre-dating the Constitution with ancient origins in English common law. As well as being irrelevant to the Amendment’s purpose and operation, those purported origins are actually inconvenient to pro-gun arguments. The appeal to them also is ironic because most Commonwealth countries—whose allegiance to English common law should be much closer—long ago enacted statutes extinguishing any such right. It lives on only in England’s rebel child, which lifted it out of the common law and enshrined it in its Constitution.

To rationalise the inconvenient truth that the right to bear arms is now rare in advanced democracies, the US gun lobby portrays their citizens as dupes and victims of oppressive regimes who are sliding inexorably into slavery. Its propaganda has created a widespread misapprehension that Australians can’t own any guns. I have experienced this personally, in some Americans’ pity for gun-deprived Australians and their silent judgment on our weakness in allowing our rights to be curtailed. This misunderstanding of Australia’s approach to guns only increases Americans’ wariness of any attempts to regulate gun ownership.

The Second Amendment’s true historical and philosophical purpose seems to lie much closer to 1776 and the proximate motivations of the American democratic experiment, including the cutting-edge Enlightenment thinking that informed its leaders. Until then, life in the American colonies reflected the operating presumption of British law: that liberty, rights and authorities were controlled by a sovereign and ceded to the people as the sovereign saw fit. The British took a millennium to wrest those precious things from the sovereign and vest them in the people, under an elected government and a constitutional monarch. That was too long for America.

The American Revolution simply reversed the presumption. Its democratic proposition, soon enshrined in the Constitution, was that liberty, rights and authority originate with the people and that the people only surrender them to a government to the minimum extent necessary to allow it to govern for the good of all, with the consent of all. Governments were inherently dangerous and the people must have the ability to curb their repressive ambitions, by force if necessary. Hence the right to bear arms: to enable resistance to government repression. This reveals a little-acknowledged dark side of America’s armed society: that it is predicated on a fundamental distrust of governments and exists, first and foremost, so that people can violently resist government depredations on their liberty. Most foreigners are astounded that American belief in this principle is as strong now as it was in 1791. The ability to do other things with guns, such as defend oneself from criminals, shoot at targets or hunt rabbits, is an incidental outcome of the right to bear arms.

The American Revolution also explains another aspect of Second Amendment philosophy that most foreigners miss: that it is indispensable to freedom and hence intrinsically political. The real debate, in other words, is about American freedom: who controls it, and under what circumstances it may be restricted. Pro-gun arguments always associate the right to bear arms with freedom: hence gun control proposals are attacks on freedom. This connection allows the pro-gun movement to mobilise passionate support from a wide cross-section of ordinary Americans whose passion is primed by uniquely American cultural values born of history (especially the Civil War) and identity (often Southern, conservative and, sometimes, Christian).

Accepting this analysis of the purpose of the right to bear arms, the problems come thick and fast. Most are ethical and philosophical, but a few are political and practical.

The first problem is philosophical: whether the right can be relinquished without abandoning the fundamental premise of American democracy: that the people trump the government. Willing disarmament would be an explicit statement that Americans, after two hundred years, have determined either that governments can now be trusted never to unreasonably restrict liberties; or that the risk to liberty of restricting the right to arm is justified by the public safety benefits it would produce. Philosophically, the former judgment is impossible and Americans are not ready to make the latter one. I suspect they never will be. To do so would be a moral defeat for the premise of American democracy: therefore, they must not repudiate the Second Amendment.

Because the right to bear arms is about freedom—a visceral American value—it has bipartisan resonance. Contrary to many outsiders’ misapprehensions, firearm ownership in America is not a Tea Party v Democrats (“liberals”) issue—both sides have staunch pro-gun members. Nor is it a dogmatic mantra chanted by uncritical yokels—it is surrounded by a vast scholarly literature and body of Supreme Court case law. Like anything mulled by lawyers and historians, it is fraught with complexities and conflicting expert views over things as arcane as the significance of commas and contemporaneous connotations. But the balance of popular and judicial judgment comes down consistently and heavily on the side of guaranteeing an individual right to own guns.

Recognition of the political reality of an immutable Second Amendment can be seen in the political tactics of gun control proponents, who carefully establish their credentials with comments like “I support the Second Amendment” or “I’m a proud gun-owner”.

The freedom–firearm nexus creates a second philosophical problem: to be able to resist the government, the people should match it force-on-force. This was feasible in 1791, when the US government could not outgun armed citizens with a standing army or constabulary. The establishment of a regular army and professional police forces, combined with the rapidly increasing cost, sophistication and lethality of weapons and the professionalisation of warfare, instantly realised the first half of Edmund Burke’s admonition against armed security forces: “an armed, disciplined body is, in its essence, dangerous to liberty”. From that point, the people’s right to keep and bear arms became only a symbolic guarantee of liberty. This is reflected in practice: firearm ownership is already subject to numerous limitations and there is a consensus that criminals and the mentally ill shouldn’t have guns.It is also an inconvenient truth that since 1791 no case of armed resistance to government repression has been deemed lawful. In other words, Americans haven’t needed to bear arms for that purpose.

Symbolic or not, the notion of a right to bear arms against a tyrannical government is entrenched, making it problematic for proposed controls on the types of guns used in the most egregious firearms crimes, such as the 2012 tragedy at Sandy Hook Elementary School in Connecticut. Arguments for banning such weapons because they are not necessary for self-defence against opportunistic crime are irrelevant if self-defence is not the main reason for having them.

The third problem, for those seeking change, is political. In a healthy democracy, amending the Constitution is a momentous decision that demands the most rigorous and searching debate, especially when the proposed change limits or repudiates a right. Unfortunately, America seems to be incapable of having such a debate on gun control. A frustrating tactic, used effectively by the gun lobby, is to shut down debate before it can begin by using electoral scare tactics against politicians who entertain “anti-gun” ideas. The level of vilification that the gun lobby is prepared to wield against politicians on this single issue is extraordinary, as are the amounts of money it is able to spend to get its message out: these go well beyond the normal political rough-and-tumble in most other countries. I say this as an Australian used to political discourse that is, in the words of President George H.W. Bush, “wonderfully vigorous”.

Gun control proponents are much less strident and effective, despite enjoying some media bias. This lopsidedness reveals another reason why the gun lobby is so successful: to use a sporting analogy, they want it more. The gun lobby is focused, organised, and will go to any length to achieve its goals, while gun controllers are gentler. But the general tactic of preventing real debate is disappointing for America, whose model of government was deliberately designed to force opposing political sides to talk to each other. It is not extreme to suggest that the failure of the gun control debate, in itself, is a failure of American democracy.

The intensity of pro-gun passion creates another problem for legislative solutions to gun violence. It is a truism, also traceable to Edmund Burke and the Enlightenment, that no laws should be made that the people are bound to break: “People crushed by laws, have no hope but to evade power. If the laws are their enemies, they will be enemies to the law.”

Unfortunately, this would seem to characterise any effective gun control legislation in the USA. Americans’ belief in a natural right to keep and bear arms creates a strong predisposition to civil disobedience. This idea is already woven into pro-gun narratives: in all likelihood many Americans would simply refuse to comply with widely unpopular gun laws, relinquishing their firearms to a government only “from [their] cold, dead hands” as National Rifle Association president Charlton Heston famously averred. Attempts to enforce such laws would put the government in conflict with these people, fuelling conspiracy narratives. Prudent political leadership must avoid gun controls that are not practically enforceable or which would criminalise unintended targets, such as non-compliant but otherwise non-criminal gun owners.

A huge practical problem in tackling firearm violence in the USA is the sheer number of uncontrolled guns in the country—there are probably 300 million firearms in the hands of the public. Accumulated over two centuries, most of these became invisible to the government the moment they were first sold to individuals. New guns added to the stockpile have embodied advancing technology and their lethality now exceeds anything that the Founding Fathers could have anticipated.

Full accountability for these firearms would require their registration and the comprehensive tracking of transfers between owners, measures that have thus far been unacceptable. The consequent black economy of firearms gives American criminals guaranteed access to guns. The ubiquity of armed criminals in the USA is one of the oldest arguments against gun control: “if guns are outlawed, only outlaws will have guns”. It is ironic that criminals’ ready access to firearms is an incidental outcome of the way the Second Amendment has operated for the past two hundred years—and has realised the other half of Edmund Burke’s warning about an armed body: “undisciplined, it is ruinous to society”. Criminals and the mentally ill have become that undisciplined armed body—the Frankenstein’s monster that now confronts America. It should be inconvenient to the gun lobby that it seeks to preserve a symbolic guarantee of liberty at the price of a real degradation in human security, but that notion relies on a connection that many Americans seem reluctant to make.

Lack of firearm accountability and the likelihood of civil disobedience may make it practically impossible to keep guns out of the hands of criminals and the mentally ill in the USA. Some rationalise this as a necessary evil in a free society, drawing support from Benjamin Franklin: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

The prospect of uncontainable and perennial criminal access to firearms raises the practical problem of what to do in response. Solutions proposed by the gun lobby rely on improving mental health care and deterring criminal possession and use of guns by more diligently prosecuting offenders, boosting police numbers and presence, and increased arming of the population. The last measure operationalises the right to bear arms by encouraging individual citizens to use their guns to defend themselves and others. To address situations like the Sandy Hook shooting, the National Rifle Association recommended the employment of armed security officers in every school. This “counter-arming” approach relies on the argument that criminals will be deterred by the knowledge that armed targets will respond with force (“the only thing that stops a bad guy with a gun is a good guy with a gun”). It could just as easily lead to a spiral of ever-increasing gun violence, but that view must contend with an inconvenient truth that some communities that have increased levels of private firearm ownership have experienced decreased crime.

The philosophical problem with counter-arming is that it creates a balance predicated on fear—citizens fearing for their safety arm for their defence, in order to inspire fear in criminals. Primary schools become armed camps for fear of danger to children, who then grow up in an environment conditioned by fear. Eventually, this solution may lead America’s armed society to fail the civil society test. Such a future is difficult to reconcile with the Second Amendment’s vision of a free state.

Reliance on prosecution to deter gun crime is also problematic in the absence of gun accountability, as criminal activity will be detected—and prosecuted—only in the breach, rather than prospectively. Such prosecutions are more likely to follow deadly violence than prevent it in the first instance.

Last, America’s approach to the right to bear arms has a troubling influence on its foreign policy. For example, America’s accession to the United Nations Arms Trade Treaty is opposed by the gun lobby, lest it lead to abrogation of the Second Amendment. Yet the Arms Trade Treaty promises significant benefits for the USA by reducing a key factor in the foreign crises into which it is drawn frequently and expensively. Given the importance of US leadership in international security efforts, this intrusion of the Second Amendment into international affairs has implications for the rest of us.

Clearly, constitutionalising an armed society as the ultimate guarantee of individual and collective liberty has caused the USA a number of problems, leading to comparisons of the American firearm ownership experience and approach with those of other countries. Australia and the UK are cited as examples of countries where bold gun control has significantly reduced firearm violence. This characterisation is based usually on the sweeping restrictions adopted after the 1996 Port Arthur massacre in Australia and the Dunblane massacre in the UK in the same year. But such comparisons are misleading: where guns are concerned, the differences between the USA and other countries are greater than the similarities.

To take Australia’s case, the most significant difference is the absence of a constitutional right to be armed or of a broad public constituency for firearm ownership. There is no freedom–firearm nexus in Australia, where most people do not highly value gun ownership for any purpose. Having a gun is a privilege of which relatively few Australians avail themselves—it is just not us. Accordingly, it is much easier for gun control advocates to attract support for their agenda, as controls have no impact, and some apparent benefits, for the majority of Australians. This makes it easier to sway legislators, who face virtually no political consequences and may reap some gains from “taking a hard line on guns”. We saw this in the process that followed the Port Arthur massacre, whereby both federal and state governments had a clear popular mandate for increased restrictions to which there was no serious opposition. Ironically for the US gun lobby, one of the more effective unifying arguments for increased gun control was to prevent Australia becoming like America in its “gun culture” and levels of gun violence. Although empirically flaky, these warnings resonated strongly with the public.

These politics mean that those Australians who do value gun ownership are effectively disenfranchised: compared with America, they are proportionately fewer, less well organised and have meagre resources. Consideration of their interests is reliant on the discipline of governments to be even-handed, objective and creative in policy-making. Australian governments could have done better in that regard. Increased gun controls are also much easier to effect procedurally in Australia, requiring only legislative changes rather than constitutional amendment. Last, Australians lack the American predisposition to civil disobedience over unpopular gun controls, further reducing the political risk of such measures while increasing their chances of successful implementation.

A big practical difference is the scale of the unaccountable firearm problem in Australia, which is both numerically and proportionately tiny compared with the USA, making firearm accountability and criminal access manageable.

These differences aside, the Australian, British and US experiences are similar in the specific type of violence that triggers popular demands for increased gun control. This is not “traditional” criminal use of firearms, domestic violence, suicide or accidents, but mass shootings such as at Port Arthur, Dunblane or Sandy Hook. In every such case, the shooter is mentally unstable. In all countries gun control advocates and the media tend to broaden the discussion to include other types of gun violence among the reasons for increased restrictions, but these seem to have little agenda-setting power on their own. Only in the USA is “routine” gun violence by criminals a significant issue, but interest is often localised and does not generate nation-wide demands for controls. This phenomenon demonstrates an interesting juxtaposition of ideas in the gun control question: the case for gun ownership is based on liberty while the most telling arguments for restricting it are based on safety against the dangerously insane—a very small proportion of the population. Benjamin Franklin may well have isolated the nub of the issue, centuries ago.

Following recent events, the American gun lobby has responded to the political power of firearm violence by shifting its leading gun rights arguments from liberty to personal security. Philosophically, this weakens the cherished firearm–freedom nexus but in practice it demonstrates the fundamental political cunning and resilience of the gun lobby. As long as it is defended by a politically pragmatic and adroit movement, the right to bear arms is here to stay.

But the notion that, to be free, a people must be armed raises equally troublesome questions for those advanced democracies whose people have consented to be disarmed. In Australia, for example, gun ownership is a privilege granted selectively to those who can demonstrate sufficient reason for it. Self-defence is expressly excluded as such a reason, much less the ability to rise up in arms against a repressive government. This should be ethically problematic for a government that recognises an inalienable right to the security of the person unless it can guarantee that security. Clearly this is impossible but the resultant ethical dilemma is politically irrelevant because most Australians feel no need to be armed for either reason. While a Shooters and Fishers Party has held a few seats in a couple of state legislatures since the mid-1990s, its policies focus on outdoor recreation and conservation—there are simply no votes in the right to bear arms per se. Yet this does not obviate the question: with no such right, are we less free than Americans?

Theoretically, we must be. This should be an uncomfortable conclusion for people who value their liberty as Australians claim to. But the fact that we (and the British, Canadians and most Western Europeans) are generally comfortable with being disarmed implies a judgment that trusting our governments not to infringe our liberties is an acceptable risk. We certainly don’t feel less free than Americans and public political life is at least as open as in the USA—as measured by the quality of debate, the regularity of lawful protests and press freedoms. The fact that most Western democracies with tight gun laws also enjoy comparable political freedoms and much lower gun violence rates than the USA should be an inconvenient truth for the American gun lobby, as should the fact that shooting sports and legal occupational uses of guns continue to flourish in places like Australia.

Perhaps Australians have found a way to own and enjoy guns without the onerous burden of being an armed society. If target shooting, hunting or farming were the only reasons for owning firearms, we might be a good example for the USA to follow. But the question remains: Why are we prepared to trust our politicians not to tread on our liberties when Americans aren’t? The answer lies, probably, in the shortness of human memory that allows us to dismiss the things that worried Enlightenment thinkers so much. Given the consequences of error, this reason seems a bit loose. America certainly did a better job of institutionalising those memories in its Constitution. For the time being, America seems to be suffering more for its devotion to armed liberty. The other Western democracies should continue to hope that history does not turn the tables on us.

The last question, then, is: How can America solve this wicked problem? This is a sovereign decision that only Americans can make, but one way might be to syllogise liberty, responsibility and accountability. Something like this: liberty and the rights that guarantee it are inviolable, but also confer responsibility; but responsibility without accountability is meaningless. So, liberty and rights demand accountability. People who enjoy rights should hold themselves accountable to their society for not abusing them. This seems especially reasonable when the consequence of an abuse could be lethal violence, which is better prevented than punished.

Not all Americans will accept this logic. But if enough of them can, there may be a way for the armed society to coexist with a civil one. Failing this, the next best response to Frankenstein’s monster is to arm. It is difficult to see how that will prevent America descending into a state of fear.

This dilemma is for Americans to solve. For the rest of us, there are two lessons to draw. The first is to be careful what we ask for when we constitutionalise a right. The second is not be smug or judgmental about America’s problems, but rather to have the honesty to entertain a little nagging doubt about how we ourselves have balanced the scales of liberty and safety, and fear. Let’s hope we’ve got it right.