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David Herdson – “So Mr Obama – feeling brave”

December 22nd, 2012

How serious is he about gun law reform?

Barack Obama’s response to the dreadful murders in Newtown, Connecticut – that something must be done – could well make the contest to reform of gun laws the defining political battle of his second term, just as healthcare was in his first. It will not be a battle easily undertaken and certainly not easily won. The question is really whether he has the heart to embark at all or whether his response was just hot air.

That gun ownership is deeply embedded within the culture large parts of the US is indisputable. That powerful lobbies will stand up – as the NRA has already done – in vocal support of the status quo is equally obvious. Taking on such opponents will use up huge amounts of political capital. It may well mean that he can’t achieve much else of significance at all. If the reform fails, so will his second term.

Even so, even more powerful vested interests have been overcome in the past. Obama didn’t object to being compared to Lincoln, JFK or Martin Luther King during his 2008 campaign. Those men were prepared to risk and ultimately sacrifice much in defence of their values, both personally and on behalf of their nation (especially if Lyndon Johnson is tied in with JFK as part of the same administration). Now is the time for Obama to decide if those comparisons were grossly off the mark.

The reality is that even if the Feinstein bill to outlaw assault weapons becomes law – and there’s a good chance that it won’t – it may be ruled unconstitutional and struck down by the Supreme Court. Her law has been passed before but expired under its own terms. Since then, the Supreme Court has been more specific on what the Second Amendment means in practice and a ban sits awkwardly with those judgements.

That brings the debate to the nub of the matter: the Second Amendment to the US constitution, which states that “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”. However anachronous that may now sound, it remains the rock upon which opposition is founded.

It is of course possible to interpret that in such a way that the right to keep and bear arms is only protected for the purposes of membership (or potential membership) of a militia. It’s even possible to argue that the right is only protected while the opening assertion remains valid and that if it’s not, then neither is the right to keep and bear arms. However, the Supreme Court doesn’t even come close to the former interpretation, never mind the latter, and justices who might favour such an interpretation are unlikely to be appointed any time soon. In any case, such a law might well be unconstitutional under the Tenth as well as the Second Amendment.

So, if there’s little prospect of a ban succeeding then what to do? That’s where Obama has to decide how brave to be. If the Second Amendment is the blockage then the solution has to include its repeal. Such a notion will be heretical to many and yet unless it is voiced then it’s difficult to see what can meaningfully be done. Even then, it would only be the start of the journey: the individual states could stand behind or reinforce their own constitutional rights to bear arms.

There is of course no prospect of such a proposal presently gaining Congressional approval, never mind that of the states. Why then do it? Because as with the anti-slavery and Civil Rights movements, a change in the political culture in terms of what is acceptable is necessary before reform can take place and that change has to be led; the flag must be raised. Otherwise, the deaths of dozens of children will continue to be seen as a regrettable but acceptable price to be paid for ancient, if anachronistic, freedoms.

Will he make such a bold move? The answer is almost certainly no: the political costs are too high, the pay-off too small, and he has other more pressing practical priorities such as the looming Fiscal Cliff. But then he didn’t really mean that something must be done; he meant that something must be seen to be done, even if it’s all an illusion.

David Herdson