Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 24 December 2012

On guns in America

I have had a couple of further thoughts on last week's post on homicide in America, prompted in part by the NRA press conference on Friday suggesting that it was necessary to have armed guards in every school. Both of these relate to the question of trust.

The first point is quite an obvious one and follows on from the conclusion about there seeming to be a relation between low homicide rates and an atmosphere of social inclusion and trust. If this is right, it is hard to see how a proliferation of armed guards is likely to be a solution. Indeed, it seems likely to me that this would create an atmosphere of heightened distrust - everyone would be viewed as a possible 'bad guy' or threat with the result that any possible short-term gains in security would be bought at the cost of longer-term insecurity and growth of distrust.

The second point is more fundamental and goes to the rationale of the right to bear arms, as recognised in the second amendment to the US constitution:
 "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."
As many people have pointed out before me, the original rationale of the second amendment appears to be related to the right to raise a militia. The origins of this right can be traced to the debates of the eighteenth century about whether the state should be permitted to have a standing army and to raise taxes to support that army - in particular as the British rulers of the American colonies had taxed the citizens to support the presence of the British army. In the circumstances of 1791, it is not then particularly surprising that the new states linked freedom to the right to a militia - which thus necessitated that all prospective soldier/citizens should possess and bear arms. The broader context was thus one of distrust of the British state (and, it is worth pointing out, a situation where homicide rates were very low).

The issue now appears to be very different. It is very clear that, for some Americans at least, the issue remains that of trust in government - though now it is a domestic government which supports a standing army. The question, though, is that of how to rebuild that trust and whether the presence of guns is likely to contribute to the building of trust or further undermine it.

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