OPINION| Americans free to live under the gun. How’s that working out?

Just under two weeks ago Salvador Ronaldo Ramos killed 19 primary school children and two teachers and wounded 17 other people at Robb Elementary School in Uvalde, Texas. Earlier he shot his grandmother in the forehead. All of this he did with two semi-automatic assault rifles he had bought. 

At the age of 18 he was shot dead inside the school. Americans were horrified and millions all over the world shared their grief — not for the first time and probably not for the last.

Ten days earlier ten people were killed with a semi-automatic assault rifle while doing their grocery shopping in Buffalo, New York. The white supremacist shooter was … 18 years old. 

America’s worst school shooting — thus far — took place in December 2012. Adam Lanza, 20 years old, shot dead six adults and 20 children aged six and seven at Sandy Hook Elementary School in Newtown, Connecticut. 

Experts differ on the exact definition of the term “mass shooting”; but agree that far too many have taken place, even in 2022 only. When will American legislatures wake up? Of course stricter gun laws are neither the only nor the total solution to the bizarre situation. One could begin to ask why teenagers feel sufficiently marginalised, lost, lonely, worthless and angry to plan such demonic atrocities and often boast about them on social media. 

The world wonders though how on earth an 18-year old —or any member of the public — may legally purchase military assault rifles, even several at once.  When a Sky News reporter asked Republican senator Ted Cruz why this happened only in America, he first responded that it was easy to play politics during a human tragedy. Secondly, he accused the media.  

Almost literally on top of a pile of tiny corpses amidst the tears, flags and flowers following the Uvalde shooting, he then proudly pronounced that America was the freest, most prosperous and … wait for it … “safest” place on earth!  The perverse cynicism of the Arbeit macht frei (“work liberates”) signs above the steel gates of Nazi concentration camps crossed my mind.

Gun lobbyists argue shamelessly that the solution is not fewer but rather more guns, not only in the hands of law-abiding citizens, but prominently displayed in public. This allegedly scares off criminals. Eish, do they know South African criminals? One of the most valuable fruits of a robbery is indeed a firearm. Law-abiding gun owners are often cruelly tortured to unlock the safe. 

After a previous shooting Donald Trump and Texas governor Greg Abbott stated that teachers should be armed. Imagine how the music teacher drops his violin and cuts loose with his machine gun when a young mom carries a suspicious looking bag containing her child’s hockey stick onto the school ground! Should the lollipop seller in a theatre keep his finger on the trigger for the safety of all?

Amid meaningless clichés like “guns are not murderers, people are” and the blaming of schools and the police, attendees at the National Rifle Association convention stated that they wanted to carry guns, “because we are a free country”.  Addressing them, Trump warned that the liberals will first take away their constitutional right to guns and then their free expression and religion. A commentator on Fox Television compared gun control with communism and the Taliban’s oppression of women.

Earlier, I opined in this paper that some American practices gave human rights a bad name. For people like Trump free expression includes the right to lie shamelessly. Now, I wonder about democracy itself — especially when dominated by capitalism.

The American constitution explicitly protects the right to bear arms. What does it mean and how far does it go? Conservative supporters of the originalist theory of constitutional interpretation argue that the founding fathers never intended to allow women the choice to have an abortion.  Would — according to the same theory — the founding fathers have intended in 1791 to protect the right of teenagers to buy semi-automatic assault rifles in bulk? Should the protection not rather be seen within the context of the American liberation struggle against England’s mighty soldiers who disarmed colonists for the glory of the British Empire?

Why do the fierce, god-fearing protectors of the life of a foetus appear to oppose, equally fiercely, measures to curb the murder of children?

The American constitution does not contain a limitation clause like the more recent constitutions of countries like Germany, Canada and South Africa. Rights can compete and have to be balanced. Thus they may be limited by law, provided that the limitation is reasonable and justifiable in an open democratic society, section 36 of our Constitution tells us. A number of factors are relevant to determine whether a limitation is reasonable and justifiable. Proportionality is central. One does not kill a fly with a sledgehammer.

Over centuries American legislatures and courts have realised the need to limit rights. If you think your right to freedom of movement entitles you to drive your Ford Mustang at 300km/h on the wrong side of the highway, hard-core state troopers and sheriffs will firmly accompany you to deep inside one of the many prisons Hollywood shows us. To protect life and limb, free movement is limited by traffic laws.

This is not rocket science. How is it that the nation, with many Nobel prize winners, that put boots on the moon more than half a century ago, does not seem to understand limitations when it comes to guns? Even in the Wild West laws compelled cowboys to leave their six-shooters in holsters behind when they entered towns for a drink in the saloon before riding off into the sunset. A total ban on all guns is not necessarily on the table.

“Money makes the world go round,” the outrageous concert master sings in the iconic musical Cabaret.  Why does Ted Cruz, a Harvard and Princeton graduate, defend guns so vigorously with such banal arguments? Like numerous other politicians, he receives hundreds of thousands of dollars from the gun industry when he runs for the Senate. Is he not captured? It costs millions to run for president. Deep-pocketed lobbyists often dictate legislation. According to the famous intellectual, Noam Chomsky, the American electoral system undermines their democracy.

Is the gun industry about rights, or profit?  Brutal big business makes simple people searching for identity believe that a conspicuous killing machine on the hip signifies freedom. Instead, the addiction to firearms gives democracy a distastefully bad name. Hopefully America will realise this before many more precious young ones are slaughtered.

And South Africa? Laws to outlaw guns are forever on the agenda. Conservatives protest against what they portray as the disarmament of the white population by the ANC government. Criminals do not give a damn. As long as backlogged licence applications fill up offices from floor to ceiling and corrupt police officers sell confiscated firearms to gangsters, all of the above will remain quite irrelevant.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.

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Johann van der Westhuizen
Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services. The views expressed are his own

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