Arms and the Civilian

So my 12-year-old asks me out of the blue:

"So suppose you're a civilian in Iraq and you'd like to buy a handgun to protect yourself in your home. You go into the gun store and look around. You even put your hand on one of the guns, to see what it feels like. Would it be legal for a soldier in Iraq to treat you as if you are an armed combatant?"

Huh. Never really posed this question to my humanitarian law students before. (The answer would of course be no: not unless you were pointing the gun at an armed combatant. The right question is whether the gun store, in such a situation, might be a legitimate military objective.)

But her curiosity brought to my mind the US Supreme Court's landmark decision last week on second amendment rights. The court ruled that the second amendment to the US constitution protects an individual's right to own firearms (not just the right of states to form militias), which means states with gun bans will need to change course.

Common sense, I'd say - which doesn't, however, mean a) that the second amendment couldn't one day be repealed if enough US citizens were swayed by the evidence or b) that guns can't be regulated, rather than banned per se. (Just like the right to free speech is limited when it comes to things like libel or incitement to genocide).

But my daughter's question got me thinking about the implications under humanitarian law, should civil war erupt in the US as it has so many other places, of a default assumption that the "civilian" population is armed. The International Network Against Small Arms reports that in fact, 74% of small arms are in civilian hands already worldwide.

The Huffington Post summarizes reactions to the rulings, including statements by Presidential candidates Obama and McCain.