KEY POINTS:
"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."
(2nd Amendment to the US Constitution)
By cruel coincidence this week brought the anniversary of the battle of Lexington, the
skirmish between a band of Massachusetts militiamen and British regulars on April 18, 1775, that began the American Revolution.
Successful revolutions generate their own sustaining mythology and the American was no exception. From what I have read, farmers and townsmen who took up arms against a real army proved to be not up to the task.
After Lexington a much larger force of militia assembled in Boston and laid siege to the British garrison.
But the townsmen got bored after a few weeks and the farmers became more concerned about their ripening crops. To George Washington's mounting dismay many of them drifted back home.
On June 15 the leaders of the rebellion decided to recruit and train a disciplined army under General Washington and that's when the War of Independence seriously started. But the romantic notion the United States was created by an armed citizenry was written into its constitution and endures.
The second amendment may not be the main cause of America's continuing affliction with firearms but it doesn't help. Not long before the tragedy at Virginia Tech this week a US Appeals Court for the District of Columbia struck down a district gun control law as unconstitutional.
That ruling is likely to be appealed to the Supreme Court but nobody is confident that the right of citizens to buy military power off the shelf will have lost any support from the latest massacre.
Thank heaven, or history at least, that we have no law cast in stone. We nearly did. When Sir Geoffrey Palmer proposed a bill of rights for New Zealand in the 1980s I was as excited as anyone by the idea that basic liberties would over-rule other law and be put beyond the meddling of a bare majority in the legislature.
Then I met a Canadian lawyer who was even more excited than me. He happened to be visiting here and was interested in the debate we were having. He came into the Herald to offer a view from a country that had recently adopted a similar charter and it was working, he said, a treat.
It was certainly a treat for him. Listening to his gleeful account of the cases he had successfully defended, cases he said he could never have won before the Canadian Charter of Rights and Freedom was given full legal force in 1982, I began to get uneasy.
They reminded me of the worst sort of justice I had witnessed in the Auckland courts, drink-driving cases defended by certain lawyers who had made it their business to know the minute calibrations of the testing device and its procedure better than the average traffic cop did.
These jackals routinely got plainly guilty clients off on the most outrageous technicalities. I used to wonder why judges listened to them but the judges had no choice. Law can be too prescriptive.
New Zealand turned against Sir Geoffrey's superior law because it seemed to have the potential to make judges more powerful than the elected government, but also, I think, because our constitutional instincts told us a charter that no Parliament could easily change would be a recipe for regret.
It is surprising that Americans, with a similar British heritage at the time of their revolution, did not have the same instinct. When they wrote a constitution that replaced the monarchy as their common point of allegiance, national unity and law, they made it nearly impossible to change.
The Bill of Rights appended to the constitution as 10 amendments in 1791 remains admirable in most respects.
But the second amendment is not the only one that looks a trifle obsolete. The third declares, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
The American Revolution was an historical experience other former colonies don't share.
The empire changed its character after the loss of its North American colonies. More than half a century later, when New Zealand was colonised, imperial policy was to encourage self-government.
Far from having to fight for independence, and worry for a while about its retention, New Zealand was reluctant to accept full constitutional independence until well into the 20th century.
How different might America be today if it had been readily given independence when it wanted rather than waiting for discontented citizens to light the fuse?
It might still be a fearfully armed society for mainly racial reasons but it might not draw false comfort from law locked in an 18th-century time warp.
