Why We Shouldn’t Repeal The Second Amendment

Feb. 9, 2016 (Mimesis Law) — Ken Womble wrote yesterday that it was time to think about getting rid of the 2nd Amendment. It’s a bold position. It’s also completely wrong.

Ken takes the position the 2nd Amendment is a failure. He argues we are ignoring this failure and it’s time to talk about banishing this amendment, for the good of the people. Because some people don’t think the 2nd Amendment is as palatable now as the Founding Fathers did back in the day, it might be time to go ahead and get rid of it.

The Constitution leaves people with the power to enforce the rights it describes. I stole this line from one of Ken’s prior posts here at Fault Lines:

But leave it to the Constitution. It grants big rights, but leaves the specifics for us to determine.

Living under the United States Constitution involves an incredible amount of responsibility. Big, big rights. Powerful protections against the type of government we rebelled against to create this country. The further we get from that creation, the more we seem to forget why these rights existed in the first place. They were intended to check government abuse of power. The inability to figure out how to do that is not the Constitution’s fault, it’s our fault.

Weighing the usefulness of the 2nd Amendment by the “problems” it creates versus how much it is “worth” is not how we determine the continued existence of a fundamental right. And it’s going to get rid of all those other rights people love so much, or at least claim to love.

Ken says the 2nd Amendment is different from other rights. It is the only one that grants the right to possess a tool, as opposed to being a procedural right or creating a human right. Ken implies that makes it a lesser right. Which disregards the obvious. Why would the Founding Fathers give us valuable rights to protect us from government oppression of speech, unreasonable searches, unfair trials, and all of the other things the Bill of Rights was intended to do, yet create this weird right that just gives the right to possess a “tool”?

The answer is simple. The 2nd Amendment grants the people of the United States much more than the right to possess a tool. It gives the people a way to protect themselves. From the government or whoever else seeks to do them harm. Ken discards both of these ideas. Because you can’t beat the government. And, of course, for the children.

Our government certainly has a large military presence. They definitely have intercontinental ballistic missiles. They probably have flying death robots. But the idea that the government’s more sophisticated military might will win the day is belied by history.

America was originally no more than a colony of the “empire on which the sun never set”. The British had a powerful military force. They had well-trained, well-armed soldiers who had managed to take over most of the planet. America had a rag-tag bunch of farmers who wanted to be free. America won.

Is it practical to expect that a bunch of deer hunters will fight off a Navy SEAL team? Probably not. But that’s not the point. The point is that the government has to understand the possibility of armed rebellion. Even if the rebellion never occurs, its specter keeps the government in check. This country has the largest military force in the world. That military rarely goes to war. Our enemies understand it might not be worth getting an ass-whipping. Does our government view the armed citizenry the same way? Who knows? But do we really want to see how they will treat an unarmed citizenry? Because it will be too late if our trust in the government is misplaced.

Ken rightfully points out that the right to defend yourself with a gun comes with a complex set of issues. But he claims you have to pick your poison when it comes to gun rights. Either you can remain powerless to protect yourself from threats or you can accept suicide and dead children.

Suicide is easier with a gun. But the problem with ditching a constitutional right on that ground is that suicide is also easy without a gun. Suicide is a complex, and very sad, thing. The idea of someone feeling so hopeless they would prefer to see what lies in the unknown beyond, rather than live another day, is heartbreaking. But should that same person dictate the constitutional right to bear arms? And, if we somehow get rid of all the guns, will that person make a different decision on ending their life?

Children create a tougher argument. What asshole wants to let the children die? But the numbers don’t back up that claim. The Centers for Disease Control keeps track of accidental deaths. The article Ken cites in his post recognizes the numbers aren’t perfect because of limitations on recorded data. But look at the numbers anyway. In the 5-9-year-old age group, firearm deaths are a tiny percentage. The 10-14 age group is similar.

Cars actually cause exponentially more child deaths. Sure, there are plenty of reasons why we can’t compare cars to guns. But if you want to take something away purely for safety, why wouldn’t cars be the natural starting point?

Ken’s final point is that the right to due process and the right against illegal search and seizure protect us from the government, while the right to bear arms fails to accomplish the same thing. The problem with that argument is that it disregards the 2nd amendment while putting the other amendments on a pedestal they don’t belong on.

The right to due process guarantees, among other things, a fair trial. A fair trial in a speedy manner. With an effective lawyer who stays awake the whole time. And a sentence that reflects justice. See what happened there?

How about search and seizure? Does it really protect people from unreasonable police searches? What about the good citizens who had their house raided for nothing? Or the family whose child was disfigured in a drug raid on the wrong house?

None of those rights are particularly effective at protecting citizens from their government. You have to be very naïve to think there is actually a guaranteed fair trial. Or that you really aren’t in danger of an unreasonable search and seizure. But those aren’t reasons to abandon the rights. Instead, they should drive us to work hard on those specifics required to enforce those big rights.

Most people would raise hell if the government came out and said “from now on, everybody gets searched.” In fact, the people might even take up…well, I was going to say arms. But I guess once we repeal the 2nd Amendment we will need to take up something else.

The 2nd Amendment is important. All of the amendments are, but the 2nd is the one under fire right now. These constitutional rights are not instruction books on how to have a perfect society. They represent an ideal. The ideal is freedom.

Most people can’t define freedom, but they know it when they see it. It comes hard in America. It always has a cost. Want free speech? You have to listen to some asshole rant and rave and spew hate. Want to be protected from search and seizure? That dope dealer who got illegally stopped with enough crack to supply every playground dealer on the East Coast? He walks. Want fair trials? There isn’t enough evidence against the neighborhood rapist who you just know is guilty? He goes home a free man.

The 2nd Amendment is just as inconvenient as the rest of them. That doesn’t mean you get to get rid of it. Sure it’s different because it gives the people the right to possess a tool, just like Ken says. But that tool is what we can use to enforce the rest of those rights. That’s the real difference. If a right has to go, the right to bear arms better be the last one.

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