Amending the Maryland Constitution

Shotgun News, May 1, 2006, pp. 26-28.

If you regularly read this column, you are aware that along with the U.S. Constitution's guarantee of a right to keep and bear arms, the Second Amendment, nearly all of the state constitutions have some version of the right to keep and bear arms. Note the qualifier: “nearly.” There are a few states that do not, including California and Maryland. But the voters of Maryland may get a chance to correct this deficiency this year.

As of the day that I am writing this article, March 19, there is a bill before the Maryland legislature that would ask the voters of the Maryland to approve an amendment to the state constitution, guaranteeing a right to keep and bear arms: “A citizen has the right to keep and bear arms for the defense of self, family, home, and state, and for hunting and recreational use.”[1] It has 29 sponsors. I do not know what its chances are of approval by the legislature, or by the voters of Maryland, but it is certainly a matter worthy of some letters by Marylanders to their elected representatives.

Some of you may be wondering, “Why do we need this added to our state constitution? Isn't the Second Amendment enough?” Well, no. It turns out that the federal courts have done their very best for the last few decades to avoid confronting the meaning of the Second Amendment. Federal judges have repeatedly claimed that the Second Amendment protects only the right of the states to maintain National Guard units (contrary to both historical evidence and some U.S. Supreme Court decisions).

Even judges who have recognized that the Second Amendment protects an individual right to keep and bear arms sometimes argue that it is only a limitation on the federal government, with the states free to regulate firearms quite restrictively. This is why having state constitutions guarantee a right to keep and bear arms is so important. Throughout American history, these state guarantees have been the primary protection of the right to keep and bear arms. My book, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right To Keep and Bear Arms, published by Praeger Press in 1994, gives hundreds of examples of such cases.

In a number of recent cases, attorneys have used newly adopted state constitutional guarantees to strike down restrictive gun control laws. West Virginia's Supreme Court in 1988 struck down a restrictive law concerning concealed handgun licenses because it conflicted with a 1986 amendment to the West Virginia Constitution identical to that proposed in Maryland.[2] More recently, the Wisconsin Supreme Court used a 1998 amendment to the Wisconsin Constitution (with similar language to that proposed in Maryland) to rule that a store owner could not be prosecuted for concealed carry in his own store.[3]

Now, do not get too excited. Some states have right to keep and bear arms provisions that are essentially worthless. In 1976, the Massachusetts Supreme Judicial Court ruled that the right to keep and bear arms provision in the Massachusetts Constitution only applied to organized militias, because the text referred to “for the common defence.”[4] The judges have the final say on what a state constitution means, and they remain the biggest problem for the right to keep and bear arms.

Still, getting a right to keep and bear arms provision on the ballot would be worthwhile—even if it does not pass, and even if judges find ways to rationalize that Maryland's current gun control laws do not violate the right to keep and bear arms. The most important reason is that the campaign to pass a right to keep and bear arms provision forces serious debate. Opponents will argue, “If this amendment passes, all the gun control laws will go away. It'll be Dodge City every day!” At that point, you can point to states such as West Virginia, and Wisconsin, where passage of identical amendments did not lead to daily gunfights, nor did it strike down all gun control laws. In both cases, however, it put judges on notice that laws that interfere with the right to keep and bear arms must be reasonable, and must be applied fairly and equally to all.

This alone is worth the cost of getting such an amendment on the ballot. The major problem in Maryland that causes the enthusiasm for gun control isn't hunters, nor the rural and suburban residents of the Eastern Shore. Baltimore (like other large American cities) is the problem. Forcing them to admit that Maryland's murder problem is highly concentrated—and not among rural hunters—forces them to admit that there an enormous difference in murder rates within Maryland. Oddly enough, the parts of the state where gun ownership is most common, are also the parts with low murder rates.

Don't use the argument that a lack of guns is what makes Baltimore so violent. That is probably not true (or at least, it doesn't contribute much to the problem), and it means passing up the bigger opportunity to win this debate. Point out to your audience that if guns caused violence, then rural Maryland, where gun ownership is quite common and accepted, should be much more violent than Baltimore. Baltimore with a population of just over 634,000 people, had 276 murders in 2004—or 43.5 murders per 100,000 population.[5] The rest of Maryland combined—with almost five million people, only had 251 murders—or about 5 murders per 100,000 people.[6] You are almost ten times more likely to be murdered in Baltimore than any other part of Maryland.

The question you want to ask during the inevitable “guns cause murder” debate that this amendment will provoke is this: “If guns are the problem—even a part of the problem—why does Baltimore have almost ten times the murder rate of the rest of Maryland? Do people that live in Baltimore have ten times as many guns as the rest of the state?” Very, very few gun control advocates are going to want to answer that question, because they would have to admit that the core problems of Baltimore are poverty and a culture of violence. At best, they might agree that the core problem is not guns, but they will argue, “The availability of guns makes those social problems deadly.”

You can then ask them the question: “Why aren't we trying to solve those problems, then? In the rest of Maryland, people own guns without turning their communities into Dodge City. Maybe we need to work on promoting the peaceful values of the rest of the state in Baltimore. Those values seem to do more good for creating peace than gun control—otherwise, Baltimore would be safe, and rural Maryland would be dangerous.” This will put gun control advocates in a rather difficult situation. They can either admit that gun control is a poor alternative to solving the cultural problems of Baltimore—or they can admit that they consider Baltimore's culture of violence impossible to fix. Neither is going to make them look very smart.

There's an amusing joke that really captures the absurdity of using gun control to solve the severe problems that have developed in America's inner cities: One night, a cop sees a man on his hands and knees crawling around on the sidewalk under a streetlight. The cop assumes that the man is drunk, and says, “Buddy, what are you doing?”

The guy under the streetlight says, “I lost my glasses over there,” and then he points a dark alley some distance away.

“So, why are looking for your glasses here, if you lost them over there?”

“The light is so much better here.”

Gun control advocates, at least the more intelligent ones, know that violent crime problems, especially violent crimes involving guns, are typically ten times more severe in inner cities than they are in suburban or rural areas—and yet inner cities, because of both poverty and generally more restrictive gun control laws, have fewer legal guns. Yet they persist in pursuing gun control as the solution to violent crime, because they know that facing this problem honestly shows that the problem of the inner cities is cultural—and this is political poison for a politician who represents these communities.

The light may be better under that streetlight—but that's not where the glasses are. Let's use a campaign about the right to keep and bear arms in Maryland to force gun control advocates there to admit it.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.

[2] City Of Princeton v. Buckner, 377 S.E.2d 139, 143, 144 (W.Va. 1988).

[3] State of Wisconsin v. Hamadan (Wisc. 2003), 41-42.

[4] Commonwealth v. Davis, 343 N.E.2d 847, 848, 849 (Mass. 1976).

[5] FBI, Crime in the United States 2004, Table 8.

[6] FBI, Crime in the United States 2004, Table 4