UNIVERSITY OF THE WEST INDIES
DEPARTMENT OF GOVERNMENT
GT33M - Contemporary Issues in the Politics of Industrial Societies.
Lecture Five. Constitutional Rights.
We associate liberal democracy with the constitutional protection of individual political rights and freedoms. But the capitalistic nature of democracy allows commercial and property rights and freedoms to be protected, sometimes at the cost of political, moral and human rights. This raises many conflicts such as that between the right to life and the right to practice the death penalty ( a moral dilemma), or the right to sell and own guns that kill (the commercial dilemma).
We have seen conflicts of other kinds already:
- the financing of political campaigns by wealthy private interests is protected as a form of freedom of speech by the US Supreme Court, although it reduces the influence of the ordinary individual voter relative to the wealthy contributor.
- the financial and lobbying efforts of issue advocacy groups >independent= of their contributions to political parties is allowed. For example, the Christian Coalition in America can campaign on behalf of abortion since limiting this contribution would affect the >freedom of religion;= limiting the role of the press would damage the >freedom of the press;= limiting the role of the National Rifle Association to sell guns and promote gun ownership would violate the >freedom of expression,= etc.. Thus, the role of special interests is protected by >freedoms.=
Constitutional Rights: Gun Ownership.
Jeremy Putley writes that, AIn 1992, handguns were used in the murders of 33 people in Britain, 36 in Sweden, 97 in Switzerland, 128 in Canada, 13 in Australia, 60 in Japan and 13,220 in the United States. The Times of London has reported estimates that there are 222 million guns in private hands in America,@ (p.72) out of a population then of about 270 million, almost one gun for every person - man, woman, child.
Singh suggests that it is easier to obtain a handgun licence than a driver=s licence in the US and firearms are less strictly subject to safety laws than are children=s toys. (1998, pp.289-290).
Putley correctly establishes that, if civil rights include the right of security and protection of the individual, then it is reduced by widespread gun ownership and if the duty of government is to guarantee and maintain the civil rights of the people, then the government of the United States is derelict in its duty.
The United States is by far the most violent of all the industrial societies, gun violence is highest there and gun ownership is most widespread. But the right to own a gun, or as the US Constitution words it, the >right to bear arms,= is protected by the constitution and the Supreme Court. This is so in spite of the fact that:
- firearms are used in seven out of every ten murders;
- in 1991, over 38,000 people in America were killed by firearms, including deaths by suicide and deaths by accident. This number was more than the number of Americans killed in the three years of the Korean War;
- the leading cause of death for teenage boys is firearms and more young people, 15 to 24 years, are killed by guns than by all natural causes combined;
- though one-eighth of the population, African- Americans were a half of all the victims of homicide and in some black neighbourhoods the murder rate of teenage boys is 12 times the national average. (Putley, pp. 72, 73). In 1995, 13.7 of every 100,000 Americans were killed by the gun, but for African Americans the rate was 29.1 more than double the 11.7 for whites. African Americans between 15 and 24 suffered a rate of 140.2 per 100,000, the highest rate for all age groups. (www.princeton.edu/~progrev/98-99/n3_ay.html).
- Women suffer more than men. A Canadian report says that on average 40% of women killed by their husbands are shot and 80% of these shootings are done with legally owned guns. Eighty-six percent of gun owners are men but over 30% of the victims are women. For every woman who buys a gun to defend herself, 239 more women are killed, often with that same gun. (www.guncontrol.ca).
- Children are at great risk too. Gun fire kills 12 times more American children than in 25 other industrialised countries combined and one-third of all American homes have guns with children. (onhealth.webmd.com). More than 12 children in America die from gun violence each day. Between 1950 and 1993, the death rate from diseases among children 15 years or less declined in the US, but they death rate from homicides increased three times, and from suicide, it increased four times from firearm related incidents. Such incidents are highest in the US compared to any other industrialized country. (www.cdc.gov/edo/mmwr/preview/mmwrhtml/00046149.htm).
The accidental death rate from gun shot wounds among children in America is nine times greater than in 25 other industrial countries combined.
- Since 1933, more Americans have died from domestic gun violence than were killed in all of America=s major wars - the revolutionary war of independence, the civil war, the first and second world wars, the Korean and Vietnam wars, put together. (Singh, p.288).
- the number of handgun crimes has risen each year to one million, according to the US Justice Department. (Putley, p.69).
- even American presidents and civil rights leaders have been targets. John Kennedy was assassinated, so too his brother Robert as a presidential candidate, and attempts were made on Gerald Ford and Ronald Reagan. Civil rights leaders like Martin Luther King Jr. and Malcolm X were assassinated. Yet, American presidents - Nixon, Ford, Reagan, Bush Snr and Bush Jr - have supported the right of gun ownership, especially Reagan and Bush Jr, a support that comes especially from Republican presidents who are particularly influenced by the powerful National Rifle Association.
The situation above shows that guns kill and they kill black people more and young people - black and white - more than any other group.
A 1998 poll showed that 70% of Americans favoured stricter gun control laws but America continues to have the most lax gun control laws of all the industrialised countries.
A Contrast: Japan.
Putley says that opinion polls in America reveal that crime is the issue of greatest concern, greater than the economy, poverty, drugs, AIDS, health care and civil rights. (p.72).
This stands in contrast with Japan. According to Schreiber, a survey in Japan in 1992, showed that Japanese were most proud of their high degree of public order. Fifty percent of Japanese felt this was the best thing about their society and only 11 percent feared that a decline in public order was the greatest future threat to the society.
Schreiber ascribes this to certain aspects of Japanese society and culture: a highly homogenous population with little racial and ethnic conflict, deeply-rooted family ties, a strong obedience to traditional authority, high levels of employment and the fact that some 90 percent of Japanese believe they belong to the middle class so there is little sense of class conflict.
But more than this, gun ownership is highly restricted in Japan. Schreiber explains:
A The purchase of hunting rifles and handguns is subject to tight controls and their use is strictly regulated. And possession of handguns, except by Japan=s police and armed forces, is illegal. These stringent gun laws are energetically enforced.@ He cites a spokesman for Japan=s police, who said that the Japanese people recognised that the strict enforcement of gun laws is one of the reasons for the high degree of social order. According to police statistics, guns were used in 74 murders and 22 robberies in Japan in 1991.
Unlike the US, the gun has a different history in Japan. Until the late 1800's, guns were almost unknown in Japan. In the country=s old class system, the Samurai class was the warrior class and the ownership of weapons was restricted to them. But that class viewed fighting as honourable only in face to face combat. The use of guns and >flying objects= was regarded as cowardly.
The killing of animals by hunters in Japan or of Japanese traveling abroad are a greater matter of controversy than the killing of people in Japan.
Another difference is that state violence - the use of guns by the police - tends to evoke a response - the counter use of guns by citizens. In Japan, the police do not resort to guns normally, and off-duty police leave their guns at the station. Prison guards do not wear guns. In America, police brutality and the glamorization of guns elicit a violent response by the population.
But Japan is not crime-free. Organised crime and criminal gangs do exist in Japan although they are less likely to use guns than they do in America. In Japan=s criminal underground, a 1986 estimate said that there were over 56,000 gang members and probably all members owned or carried a gun. But in 1992, there were only 222 incidents that involved the use of handguns and most targets of shooting were non-human objects. Some of the illegal handguns come in from China which is a large producer of handguns. Also, foreign workers sometimes engage in crime.
The Right to Bear Arms.
America is the only industrial country where there is a constitutional right to bear arms. This comes out of the history of a country in which settlers colonized America with the gun - outshooting native Americans and creating the >wild west=, fighting a war of independence, a war against Mexico and a civil war.
America=s Second Amendment states, AA 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.@
Gun control advocates point out that this provision only applies to the militia or to threats against the security of the state; and is anachronistic since America is not in a state of siege, except by its own hands because of the very >right= to bear arms.
In Japan, there is no right to bear arms. The law is balanced on the side of the security of society and even the individual gun owner, than simply on a right to own guns. There is strict regulation on who owns a gun, how and when it can be used, and if it is used to harm or if it is stolen, the owner can face harsh penalties.
In Canada, there has never been a right to bear arms and several court rulings have affirmed the right of the government to protect citizens from guns. The United States (in 1993) had 32 times the number of firearms that Canada had; 77 times the number of handguns and 3.5 times the number of guns per capita. (www.guncontrol.ca).
The Right to Protect Life.
One study showed that there was a 92% correlation between households with guns and death by the gun in 14 industrialized countries. In a household with a gun, a family member is 2.7 times more likely to die from that gun; and having a gun in a household increased the risk of a suicide by 4.8 times. The risks are greater for adolescents when guns are kept loaded and unlocked.(www.guncontrol.ca).
One third of American homes with children also have at least one gun in them. A gun kept in the home is 22 times more likely to kill a family member accidentally, in a suicide or a homicide, than it is to kill someone outside of the home in self defense.(onhealth.webmed.com). In fact, in only 2% of cases is the gun used to defend the home during a burglary.
While rates of violence in the United States are comparable to those in Australia, Canada and Britain, the rate of lethal violence is greater in the US. Murders without guns are 40% higher in the US than in Canada. But murder with guns is 1500% higher. (www.guncontrol.ca)
Guns and the Political Process.
America has the strongest gun lobby and the most porous government, that is an open government, but open to influence from these lobbies at the state and federal levels, and the separation of powers allows lobbyists to play off one branch of government against others (like the Supreme Court, the executive, the congress).
Putley squarely blames the American model for a >decay of politics= and a >moral vacuum= that has led to >crime, divorce and family breakdown, civil unrest, national debt, the homeless, deficient health care, falling educational achievement.= He says:
AThe Second Amendment has an effect opposite to that intended by the founding fathers. Far from promoting security, it is destructive of it.@ (p.73).
But the problem is that, AAmerica suffers from a lack of moral leadership, not because of defective politicians, but because they are rendered impotent in the face of structural, systemic defects in the American model....Checks and balances are the problem.@ For example, although most Americans want strict gun controls, the Supreme Court has overturned all congressional efforts at this, and the executive can veto any such congressional legislation.
But there is a fourth branch of >government= - the private lobbies that have access to power through America=s loose campaign finance laws which aid and abet the cause of gun lobbyists. Gun rights lobbies provide large campaign donations, 93 percent going to the Republican party (in campaign 2000) while anti-gun lobbyists provide about the same percentage to the Democratic party. The issue is therefore tied up with campaign finance and splits down party lines. The National Rifle Association is the primary lobby group against gun control in America. It spends millions as an issue advocacy group to get politicians in favour of gun control defeated and those in favour, elected.
Singh shows the power of this >fourth branch= this way: AThe political calculation on gun control for many elected officials, in Congress and state legislatures is...support strong regulatory measures, and thereby antagonise a powerful, well resourced interest lobby whose mobilisation will likely alert many voters who vehemently oppose such action...@(p.293).
Parliamentary systems with a majority making laws and where there is no separation of powers are more successful at passing effective gun control laws. For example, the British government was simply able to outlaw virtually all private ownership of handguns in 1995-96. Death by the gun is 14 times greater in the US than Australia. In the 1980's when Australian gun control laws were weaker, some 700 Australians died by the gun each year. In the 1990's under stricter laws, that figure has been cut in half. (www.guncontrol.au.org/).
The Gun Culture.
The gun culture creates a normalization of violence and when coupled with a fragmented political system and ineffective laws, produces the kind of situation found in the United States. When Britain passed strict gun control laws in the 1990's, it did so with the explicit aim of rejecting the American gun culture.
Martin Luther King, himself to become a victim of the American gun culture, described it in 1963:
ABy our readiness to allow arms to be purchased at will and fired at whim; by allowing our movies and television screens to teach children that the hero is the one who masters the art of shooting and the technique of killing...we have created an atmosphere in which violence and hatred have become popular past-times.@ (www.guncontrol.ca).
Constitutional Rights and The Death Penalty.
One of the great ironies of the American ideological culture is that its conservatives are strong on right to life issues, so they are against abortion. Yet, they are in favour of gun ownership even though there is irrefutable evidence that gun ownership correlates with increased killing. They are also in favour of the death penalty. Their leading politician, George Bush Jr. was Governor of Texas, the state with the most executions. Bush Jr. presided over more executions (120) than any other Governor.
America is the only western industrialised country that still allows the death penalty, or to be more exact, 38 states still prescribe it. Member countries of the EU have abolished capital punishment. Britain did so in 1965, Canada in 1976. Japan is the only other industrial country to still use the death penalty.
Between 1930 and 1999, 44 American states executed 4,459 persons. Although African Americans are 12 percent of the population they make up more than 50% of those executed over that period. Between 1977 and 1995, 27 states executed 313 persons. In 1999, there were over 3,000 prisoners on death row.
Again, we go to the American Constitution. The 5th and 8th Amendments permit >deprivation of life=, as long as this occurs by >due process of law= and is not done by >cruel and unusual punishments.= Cruel and unusual punishment refers to crucifixion and burning at the stake.
As a matter of fact, in 1972 the Supreme Court ruled that the death penalty was unconstitutional because two judges ruled that execution in any form constituted cruel and unusual punishment while another three simply said that courts prescribing the death penalty had too much power since they could not always precisely say why someone should not get life imprisonment over the death penalty. But in 1976 this was changed back to making the death penalty constitutional once more clarity was provided about the criteria for receiving the death penalty.
Human Rights and Commercial Rights.
It can be argued that, being the industrial country with the most killings by far, then the death penalty is in order, and America has more cause to use it than other countries.
On the other hand, it could be as forcefully argued that, since guns kill and widespread gun ownership is associated with widespread killings, then the solution is for strict gun control laws, like other industrial countries have, so that eventually with lower rates of killing such a desperate measure as the death penalty would not be necessary.
The solutions then are, strict gun control or abolish the death penalty. Why has America chosen to go the opposite route of all other industrial countries on both grounds, that is, to refuse strict gun control laws and to retain the death penalty?
I suggest it is because America puts commercial rights over human rights. It suits the manufacturers and distributors of guns, the paramilitary racist and nationalist groups (like Ku Klux Klan), and all those who fear that Americans must arm themselves against real and imagined enemies who want to take over America. It suits them to say that the solution is not to ban guns (its a multi-billion dollar industry), but rather the solution should be the death penalty. This appeals to public sentiment to >get tough on crime= at the source, by punishing the criminal. Indeed, the NRA=s slogan is, >guns don=t kill, people do.= It points the blame away from the gun manufacturers and to the gun users. So, the message is, don=t punish the enterprising businessman who makes the guns to protect America and Americans but the criminal person who uses it.
The >right to life= conservatives can further accept the death penalty behind the religious guise of retribution which is legitimized by the bible. But it is easier to accept that the death penalty does not contradict human rights when the human rights being violated are the rights that wealthy, pro-business, white conservatives don=t quite regard as >equally human,= that is, the rights of the poor and the black.
Singh points out the unequal and discriminatory effects of the death penalty.
AThe death penalty is the >privilege of the poor,= inflicted not on those who have committed the worse crimes but on those with the worse lawyers. At least 90 percent of death row inmates cannot afford their own attorney. Some defendants go to trial for their lives represented by lawyers who are inexperienced, unprepared, overburdened, or even drunk.@ (p.347).
Then there is racial discrimination:
AAlthough African Americans make up only 12 per cent of the total American population, approximately 42 per cent of death row inmates are black. Blacks and whites are victims of murder in almost equal numbers, yet 82 per cent of prisoners executed since 1977 were convicted for the murder of a white person. In Kentucky, for example, every death sentence up to March 1996 was for the murder of a white victim, despite over 1,000 homicide victims in the state being black.@ (p.347).
A disproportionate amount of blacks end up on death row as though the police look more diligently for black suspects, and when blacks kill whites they get the death penalty, but when whites kill blacks, they often don=t.
The justice system is racially structured against blacks. Singh continues: AAlmost all the district attorneys and other officials who decide whether to seek the death penalty are white. In 1998, of the 1,838 such officials in the 38 death penalty states, only 22 were black and 22 were Hispanic. In Georgia, six of the 12 black prisoners executed between 1983 and 1999 were convicted and sentenced by all-white juries after black nominees had been removed.@ (p.347).
Singh also refers to a 1996 report by the International Commission of Jurists in Geneva that called America=s system of capital punishment >arbitrary= and racially discriminatory where the prospects for fair hearing for capital offenders could not be assured. But the American Supreme Court had already rejected the claim in 1977 that a racially disproportionate death penalty system was unconstitutional.
At least women are not especially disadvantaged. Forty four women have been executed in the US in the past one hundred years. Fifty-three are now on death row.
Women account for 13% of all murder arrests; 2% of death sentences imposed; 1.4% of those on death row; 0.6% of those executed since 1977. (www.deathpenaltyinfo.org/womenstats.html).
Arms is big business.
The human rights of Americans, especially the poor and black is more easily sacrificed than the commercial rights of the arms merchants who one 1960's song described as the >masters of destruction.=
The world market trade in arms in 1998 is estimated at between US$9-12 billion. The major suppliers are, Russia, China, Belgium, Germany, US, Israel. In 1998, the US sold or transferred US$434 million worth of small arms to 124 countries around the world. Of these, 30 were at war or experiencing persistent civil violence. Small arms have become more important since the end of the cold war as they are cheaper and available to civilians as against airplanes, tanks and the like, that are almost exclusively for regular armies.The global trade in major weapons has declined since the cold war but the trade in small weapons has increased. In addition to these sales, billions more are earned from domestic sales, especially in the US where the atmosphere is so permissive. (www.sciam.com/2000/0600issue/0600boutwell.html).
This is a most profitable business and the US$13 million that pro-gun lobbyists gave to the Bush campaign in 2000, is more than made up for by sales in the domestic and world markets. Even the US government buys from the arms merchants and then provides arms to other countries as security aid. For that reason too, the arms industry is important to America=s foreign policy.
It is important to arms capitalism and foreign policy hegemony to protect gun rights in America. It is less important to protect human rights, especially when Americans can be led to believe that the death penalty punishes the right people.
Democracy and public opinion.
Some pro-gun lobbyists say that protecting gun rights is not only constitutional but democratic. Opinion polls do show that a majority of Americans support the death penalty. But that support fell from 70% in 1998 to 64% in 1999. The single most important cause for the decline was that more Americans have come to believe that innocent persons are being executed. In one case in 2000, DNA evidence, only recently being used, showed the innocence of a black man who had been imprisoned for 18 years.
Yet, the fact remains that a majority of Americans are in favour of the death penalty. But does this mean that the government is responding to the majority will? Not really. A majority of Americans want stricter gun control measures and are not getting them. A majority of Americans want the Electoral College abolished and the government has no intention of complying. It appears then that public opinion only conveniently coincides with what the government and its pro-gun lobbies want.
Democracy and politics must be judged on how they affect the lives of real people. An attachment to constitutional provisions that bear no relation to reality even when those provisions hurt people, is constitutional dogmatism or constitutional fundamentalism. No other issue so directly hurt people and deprive them of that most fundamental right - the right to life - than the gun issue, along with the death penalty.
These issues face all industrialised societies. All of them have strict gun control laws and all of them, except Japan, have abolished the death penalty. In the case of Japan, gun crimes are not a major problem and the death penalty is hardly applied. The US is the major exception on these two issues. The question is why. When the profitability of the arms market is factored in, as well as the closeness of powerful gun lobbies to the Republican party, and the dependence of the two parties but mainly the Republicans on corporate money for campaigns, then the answer becomes revealing. The poor and the black do not have strong lobbies and cannot give large donations to the parties. In the end, the arms merchants get their wish, which is for the right to make, sell and own guns. The poor and black do not get their wish, they get the death penalty.
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