This week, former Justice of the Supreme Court John Paul Stevens, a conservative, wrote in an op-ed that Americans should “demand the repeal of the Second Amendment.” He continued, “a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the NRA’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.”
In 1991, Former Chief Justice Warren Burger, famously conservative, said that the Second Amendment “has been the subject of 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.” Burger added that if he were to rewrite the Bill of Rights, “There wouldn’t be any such thing as the Second Amendment.”
But note Burger’s careful language: the Second Amendment “has been the subject of one of the greatest pieces of fraud.”
That’s not the same as saying the Second Amendment itself is a fraud. What Burger meant was that the amendment has been abused by the gun lobby and conservatives for political gain. It’s now a weapon of fear, and was forged in the ironworks of good old fashioned American racism. The truth is that the Second Amendment is hopelessly out of date, or in the words of Justice Stevens, a constitutional provision that might once have had relevance but is now “a relic of the 18th century.”
The Second Amendment should be repealed, and at the very least rewritten. It’s about updating the Constitution to enable gun control in the interest of lowering death rates, suicide rates, and stopping massacres. The Constitution was made to be legally broken. It’s high time we stopped listening to the one-fifth of gun owners who belong to the NRA and argue in bad faith that this is a sacred and inviolable right. It’s not.
I’m not going to trot out a bunch of statistics about gun deaths, massacres, and suicides. We all know those arguments, and you can feel free to debate them elsewhere. I’m not interested in that anymore. Hunt, fine. Keep a revolver locked up in your home for protection, fine. I wouldn’t do it, and it’s dangerous as hell, but I understand. Semi-automatics, though? Ban them all, confiscate them, and burn them. Here’s my defense of that opinion.
This article is now about the Second Amendment.
The United States is the only country in the world that gives its constituents a blanket right to own weapons. This isn’t a reason in itself to enact any sort of policy, but it’s worth noting because the parallel consequences are undeniable: The U.S. is the only country with this kind of law, and the U.S. is the only country with these kinds of single-shooter massacres of targeted innocents.
Some countries have indeed emulated our Second Amendment for their constitutions: a total of twelve of them. And of those 12, today only two still have a constitutional provision sanctioning the right of the people to own weapons. Those countries are Mexico and Guatemala, and they have some of the highest murder rates in the world. Every other country has revoked their citizens’ constitutional right to bear arms.
And again, it’s silly to propose we should base our laws on the laws of other countries alone. But there’s a proven correlation here: The United States is the only country whose constitution specifically sanctions the right to own basically any kind of weapon (yes: fully automatic guns and even hand grenades included), and it’s also the only country whose citizens routinely slaughter large groups of other citizens at random. Aside from extreme outliers such as the 2011 mass shooting in Norway and the 1996 Port Arthur massacre in Tanzania, no other developed country sees these massacres, and even taking all outliers into consideration, they’re scattered. There’s no other developed country with a pattern: Yes, there was a slaughter in Norway, but there’s no slaughter culture there.
Similarly, a repeal of the Second Amendment and flat-out ban on semi-automatic weapons and high-capacity magazines won’t stop massacres in the United States, but research says it will reduce these events dramatically, and more importantly will reduce their lethality.
The Second Amendment truly is a relic, no matter which side you’re on. First, the Amendment’s actual language:
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.
Here are a few reasons it’s obsolete.
1. We don’t need a well-regulated militia to combat a national standing army in the event of some sort of armed government takeover, because there will be no armed government takeover. Worth noting: The people who claim they fear some sort of US military takeover are often some of the most vocal advocates for the US military. They’re also not coincidentally many of the same people who own a ton of guns. Related:
2. If those Second Amendment people were truly interested in checking our standing army, they’d want to rewrite the Second Amendment, too. Except instead of limiting guns, they’d demand access to more firepower. After all, even though there’s a little more than one gun for every American, three percent of Americans own half the country’s guns. That’s where our citizens’ firepower is, and that three percent would hypothetically be fighting tanks, airplanes, etc., with AR-15-style weapons. They also typically don’t live in population centers. It would be one of the easiest victories in the history of the U.S. armed forces.
So if anything, we should all at least agree the Second Amendment is antiquated, even if we have opposing reasons. If you argue we need it in order to protect ourselves from our own government but you don’t demand an update, you’re making your argument in bad faith. Otherwise how can you protect us from our government? I for one wouldn’t turn to you for protection.
3. The United States has a history of supporting gun control. In the 1800s, the states of Kentucky, Louisiana, Indiana, Tennessee, Virginia, Alabama, Ohio, Florida, Oklahoma, and Texas all banned concealed weapons. In 1893 the governor of Texas — yes, Texas — said that the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.” All of those states now allow concealed carry in some form. All but Florida allow open carry.
And in 1939 the Supreme Court issued a unanimous decision that Congress could ban sawed-off shotguns because they weren’t relevant to maintaining a “well regulated militia.” I’d argue that given the firepower of our military, the most powerful in the world, none of our citizens’ weaponry is relevant to this part of the amendment anymore.
4. The NRA used to champion gun control. Five days after President Kennedy was assassinated in 1963, Senator Thomas Dodd put forth a bill restricting the mail-order sales of shotguns and rifles. (Oswald bought his through the mail.) During those hearings, the executive vice president of the NRA said before Congress that “We do not think that any sane American, who calls himself an American, can object to placing into this bill the instrument which killed the president of the United States.” Today in most states you can buy mail-order guns over the internet with no meaningful restrictions.
You’d be forgiven for thinking that, with all the founding-father-fetishizing surrounding the gun debate, this has been an age-old debate. But for about two hundred years the Second Amendment had the least amount of U.S. case law of any amendment but the Third (your right to refuse to quarter soldiers in your home). I’ll point out that the framers of the Constitution didn’t do too many things haphazardly, and those two amendments weren’t put next to each other at random: The Second Amendment refers explicitly to a “well-regulated militia.”
Of course, the Supreme Court held in a 2008 case, D.C. vs. Heller, that the Second Amendment does indeed apply to the right of all citizens to bear arms. But the Court also held that the amendment, like the First Amendment, is subject to regulation and restrictions. (You can’t libel someone, for instance, or scream “fire!” in a theater, etc.) They’ve left those decisions up to the states and possibly also to Congress, but more on that in a minute. The Court, however, hasn’t touched a gun control case since, and there are a few possible reasons.
First, the Court might think it’s ruled definitively on this issue and doesn’t want to wade back into it. Or as NPR’s Nina Totenberg pointed out, the Justices on both sides might not be confident enough they have the votes anymore.
But given the fact that even conservative justices have advocated for the repeal of the Second Amendment, the reason for the Court’s recent silence might be more nuanced. After all, it’s the job of the Court to rule on the constitutionality of laws. They’re interpreters and arbiters, not writers. This circumscribes their power and brings us back to Burger’s careful language: Regardless of how you interpret the Amendment, the language itself is problematic and out of date. It has not kept up with the times.
Thought experiment: Let’s pretend the Constitution sanctioned slavery.
But did the Supreme Court rule that slavery was illegal? No: Congress rewrote the Constitution to abolish slavery. It’s not the Court’s business to repeal or rewrite the Bill of Rights. It’s the business of Congress and the American people. And it’s a gutting shame that we’re not doing all we can to eliminate all access to the kinds of weapons that allow human beings to massacre dozens of other human beings before anyone can even identify the type of weapon they’re using to do it.
I’m under no delusion that a repeal will happen any time soon, but I’m tired of compromise on this issue. Progress happens slowly, and progress is maddeningly uneven, but in America it does happen. Even the worst cynics can’t deny this. And this is all because nothing in the Constitution is sacred. The document is so flexible that one time, during Prohibition, we changed it and then changed it back. The people who founded our nation didn’t chisel this stuff in stone. They wrote it on paper. Paper, they knew, disintegrates with time. And it burns like all of our semi-automatics should.
So with that in mind, I’ll wrap this with the words of Thomas Jefferson, who helped craft the Second Amendment.
...laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made,new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.