The Case for Repeal

The March for Our Lives in Washington and other cities around the country this Saturday was by most accounts a tremendous success, at least if you are of the opinion that our children deserve to be heard on the issue of safety in their schools. Dozens of speakers, none of whom from what I could tell were above the age of twenty, gave harrowing accounts of their personal experiences with gun violence. Along with that, wrapped up in understandable emotion, some of the speakers got lost in the moment and let loose with rhetoric that didn't exactly stand up to rigorous scrutiny.

That point wasn't lost on the gun-toting members of the ulra-right who continue to make the accusation that the motivating force behind the march and the speeches is not the young people themselves, but adults on the "Left" who are using the kids to promote their own agenda. You can see for yourself as Fox News's Tucker Carlson leads off his story, broadcast the day before the march, with the headline "Gun Control March Backed by the Wealthy."  Carlson, who believe it or not, is one of the more level-headed of that network's talking heads, takes pains to rip into the logic of several Marjorie Stoneman Douglas High School students, survivors of the mass shooting that took place on February 14.

Carlson tried to drive home the point that the anti-gun rhetoric of the students should not be allowed in public discourse because it is fueled by emotion and naturally, the people uttering it are only kids. I imagine his ire (whether it is genuine or not I have no idea), was only fueled by the actual speeches from the platform located on Pennsylvania Avenue between the Capitol Building and the White House, many of which called for the repeal of the Second Amendment.

Now to some Americans, the Second Amendment is as sacred as mother, the American flag and sweet baby Jesus. "Mess with my Second Amendment..." many Americans will defiantly tell you, "...and you're going to have to answer to three of us, me, Mr. Smith and Mr. Wesson."

I get it, nobody likes being told, especially by a bunch of teenagers that a right they enjoy should be taken away. While I've never owned a gun, I've shot them, and have to say this, it's really fun. My years as a photographer helped make me a pretty good shot, and it's quite satisfying to nail tin can after tin can with a pistol or a rifle. I've even used a shotgun to shoot a plastic milk container, thrown skeet style by a friend who was standing behind a tree, (cue the Duck Dynasty music). I can only imagine how irritating it would be, after investing a good chunk of money on a private arsenal,  to listen to kids a third my age tell me that their friends would be alive today if only I wouldn't be allowed to own my guns.

Given that, I seriously wonder which is the greater offense to gun owners, the thought that our constitution might compromised by examining the limits of one of its amendments, or the idea that someone wants to take away their stuff.

Rightfully we've come to accept that our constitution, from to each cross on every "t" to each dot on every "i" is sacrosanct. But few of us stop to really question what the document means, or why certain concerns are addressed while others are not. Sometimes it all boils down to the authors addressing issues that were specifically pertinent in their day. Take for example, the Third Amendment:

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.

This tidbit was written to forever put to rest a British law known as a Quartering Act, requiring local American governments, and even private citizens, to provide food and housing to British soldiers. These Quartering Acts, there were more than one, particularly irked the colonists and were one of the major grievances that led to the American Revolution. While the Third Amendment may come in handy one day, one never knows, no case has ever been brought before the Supreme Court which has used the Third Amendment as an argument. The amendment is irrelevant in our day as it addresses a matter that was settled with the founding of the U.S. Army, which has a policy of feeding and housing its own soldiers.

In much the same way, the Second Amendment was written to address an issue that was relevant at the birth of this nation, but not today:

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.

At the time of its writing there was still grave concern that the power of the Federal government would usurp the rights of state governments. The second amendment was written as a means to keep any potential standing federal army (there was none at the time of the creation of the Bill of Rights), in check by state militias which would be comprised of private citizens. An armed citizenry, so the theory went, would be an insurance policy for a general public weary of a central authority, against the theoretical possibility of losing their liberty as a result of a tyrannical federal government. Eventually these militias were organized into the state run reserve military units known as the National Guard.

Gun advocates continue to use the argument that the second amendment is a necessary tool for the citizenry to defend itself against the threat of a tyrannical government. However today, while the threat of tyranny certainly remains, it's a rather quaint pipe dream that a militia of citizen soldiers armed with AR-15s and other semi-automatic weapons, would be any match for a government backed by the firepower of the U.S. military. Not that fringe groups like the Branch Davidians, and the Oregon Militia haven't tried it, typically with disastrous results to themselves and their supporters.

Which brings me to the point of this post: is the Second Amendment relevant or necessary in our day and if not, is there a legitimate case for repealing it?

Former Supreme Court Justice John Paul Stevens thinks there is. In an Op Ed piece published in the New York Times this morning, Justice Stevens writes that he considers the Second Amendment to be nothing more than aa "relic" of the eighteenth century that has zero relevance in our day.

Speaking with admiration of the events that took place last Saturday, Justice Stevens writes:

These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society. 

That support is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.

He then gives a little history of the way that courts have treated the Second Amendment though the years. The Second Amendment was virtually left alone until 1939 when the court unanimously ruled in favor of banning sawed-off shotguns as the weapon had "no reasonable relation to the preservation or efficiency of a 'well regulated militia.'"

The precedent of that ruling led to the understanding that government could indeed regulate the sale and posession of firearms. That understanding stood until a 2008 case, District of Columbia v. Heller, which in a 5-4 vote, the court overturned Washington D.C's ban on the sale of handguns, In that ruling, the court essentially declared that militias and individuals were indistinguishable. Justice Stevens was one of the dissenting voices in that ruling and Justice Antonin Scalia wrote the majority opinion in that case. As one of the most conservative voices of the Supreme Court in memory, and a self-declared champion of basing his decisions on the "original intent" of the framers of the constitution, Scalia was ironically responsible for one of the more radical, precedent changing rulings in court history, one that in Stevens's words: "has provided the N.R.A. with a propaganda weapon of immense power."

Stevens quotes former Chief Justice Warren Berger a conservative judge if there ever was one, characterizing the NRA's advocacy of the individual's (as opposed to the militia's) right to bear arms, as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”

In a PBS interview made after his retirement, Berger also said that if he were writing the Bill of Rights in 1991 when the interview was conducted, "there would be no such thing as a Second Amendment."

Indeed, given the fact that there are as many guns as people in this country, that we have one of the highest rates of gun violence in the world, and that we are currently experiencing an epidemic virtually unhead of anywhere else on the planet of mass shootings, can anyone with a straight face seriously claim that we are better off with our Second Amendment?

There are valid reasons to own a gun. People legitimately use guns for hunting or target shooting. But those are hobbies, certainly not activities deserving protection from the constitution. Some people feel they need a gun for self-protection, although odds are that the gun they own is more likely to be used on themselves or their loved ones than used in fending off a bad guy.

It must be noted that a potential repeal of the Second Amendment would not mean that guns would be banned. It would simply remove them from the unreasonable protection they now have, that no other consumer product enjoys. Without the protection of an outdated constitutional amendment and a very questionable Supreme Court decision, a repeal would mean that common sense would dictate the regulation of the manufacture and sale of firearms, including what types of guns could and could not be produced, and the licencing of users who are competent enough to own them, just as other dangerous consumer products are regulated and licensed. It would enable buy-back programs that would allow people to be justly compensated for turning in their weapons, meaning fewer guns in circulation. And it would encourage studies from bodies such as the National Institute of Health into the causes and effects of gun violence in our society which are currently blocked by politicians who are under the thumb of the NRA.

Ah but those criminals aren't going to care about any laws or studies are they? Of course not. But it must be noted that the more guns that are manufactured, the more guns there are in circulation. Combine that with laws that are lax in determining who gets to own one, the more easily guns become accessible to people who have no business having them.

No, a repeal of the Second Amendment alone is not going to SOLVE the gun problem in the United States. Frankly I am loathe to tamper with our constitution at all, given the tremendous pandora's box it would create in regards to other parts of the bedrock of our democracy. If I had my druthers, I'd work with the tools the authors of the Bill of Rights have already provided within the framework of the Second Amendment. To the gun crowd who uses the Second Amendment as an argument to reject any enactment of gun control no matter how tame or reasonable I say this bluntly: "What part of the words 'well regulated' don't you understand?

Unfortunately those sentiments go unheard. Pleas for reasonable regulation of the manufacture, sale and ownership of guns are ignored by politicians beholden to the NRA, the gun industry that organization serves,  and their gun toting constituents, despite the bloodshed that occurs in this country on a daily basis due to guns.

Perhaps a new strategy is in order because the strategy of playing nice with the gun crowd by agreeing to work within the framework of the Second Amendment falls upon deaf ears. Perhaps the only way to reel in the madness that is overtaking our country as far as guns are concerned is to fight to remove an obsolete and irrelevant road block to making American sane again.

Along with that of couse is to work to elect like-minded public officials who are brave enough to take on what would certainly be a massive struggle fraught with peril.

To those who say that the ownership of guns is a fundamental liberty afforded to the American people by their constitution, I say this: no liberty comes without limits and responsibility. If you cannot accept the limitations and responsibilities that naturally come with a liberty, perhaps regretfully, you are not equipped to handle that liberty.

If it takes threatening to take away the Second Amendment like an adult might threaten to take a toy away from an spoiled, obstinate five year old child, well so be it.

Perhaps then, and only then, will the people in power start to listen. Perhaps then and only then will we begin to see results.