An Argument For Repealing The Second Amendment

Feb. 8, 2016 (Mimesis Law) — Last December, the great Popehat, who removes his cape and Clark Kent’s it up over here at Fault Lines as Ken White from time to time, wrote a popular piece on the 2nd Amendment entitled Rights Are Bundled, Not A La Carte. Ken made a brilliantly incisive point about the interconnectedness of our rights and the inherent danger of tinkering with any one right.

Constitutional rights come in a bundle. You may not see the whole bundle; you may only see the particular stick you are holding at any given moment, like free speech or the right to counsel or the right to be free from unreasonable searches. But the bundle is there, and the thread holding it all together is thin. If you pull on your favorite stick too hard trying to separate it, the whole thing falls apart.

Ken masterfully tied his point to other rights that are treasured by criminal defense attorneys like Ken and me. There is no doubt that a direct assault on gun rights will open the door for a counter-attack on the already embattled rights that prohibit the police from searching someone’s pockets without proper legal basis or torturing them into a confession.

But is the almost certain responsive threat to our other rights so horrifying that we should continue to ignore the failure that is the 2nd Amendment?

If you have cartoon steam coming out of your ears right now at the suggestion that the 2nd Amendment is a failure, hang with me here. If you are a regular reader of Fault Lines, then you should know that we aren’t here to rub your tummy with constant agreement. Fault Lines is here to dig deeper and try to unravel incredibly complex issues; pleasantries and consensus be damned.

The 2nd Amendment is one of those incredibly complex issues. It is also, as a right, very, very different. Most of our constitutional amendments establish human rights, like freedom of speech, assembly, due process, voting, etc. A smaller number deal with procedure, such as presidential succession, prohibition of the poll tax, senatorial election, etc. But then there is #2. In our nation’s almost 240 years of existence, the 2nd Amendment is the only time our leaders have granted a constitutional right to possess tools.

At some point along the way, “arms” became exclusively “guns.” There are three main arguments in support of the 2nd Amendment. First, the right to bear arms was meant to ensure that the people had the ability to fight back against a tyrannical government (or in fact a perfectly fine government, as there is no line in the Constitution or elsewhere that delineates when a people may or may not rise up in revolution). Second, arms are necessary for personal security. And third, or the Popehat point, removing one constitutional right endangers all rights because it diminishes the sanctity of the Constitution.

As to armed rebellion, who are we kidding? Our nation has spent decades throwing trillions of dollars at our military and law enforcement agencies. Much of this money has been spent on the most powerful and precise weaponry the world has ever known. It does not matter how many AR-15’s are in public hands, the government will win, win big, and win quickly.

Back in 1776, things were different. Arms technology was so primitive that the 2nd Amendment’s attempt to provide a mechanism to check government power was logical. In 2016, though, the public has personal use firearms and the government has flying death robots and intercontinental ballistic missiles. The fall of the 2nd Amendment as a viable check on government power directly coincides with the massive rise in weapons technology over the last century. Just ask yourself, when is the last time an armed uprising in this country accomplished anything more than civilian casualties and federal prison?

The argument that guns are necessary for personal protection is much more complex. At its most basic level, yes, if someone were to threaten your life, you could potentially eliminate that threat with the “arm” protected by the 2nd Amendment. But it cannot be forgotten that along with the right to protect oneself with firearms comes a lot of baggage. Access to firearms has been proven to increase the rate of suicide. And how many times do we hear stories of children accidentally shooting each other after finding their parents’ guns? Successfully protecting oneself with a gun certainly happens. But so do suicides and dead children. Choosing sides is merely picking your poison.

Whether or not statistics show that more preventable deaths are caused by guns than when they are properly used for protection, that fails to factor in the intangible of merely having a gun. With all the horror stories flying off our TV screens and out of our newspapers each and every day, people own guns to feel safer, not only for themselves, but also for their families. This sense of security is not insignificant.

But where the tables turn against guns-for-personal-security is with the other side-effect of the 2nd Amendment. We as a nation are armed to the teeth. Good people have guns, regular people have guns, and terrible people have guns. Over 12,000 people died and over 26,000 were injured in this country last year by gun violence. Some might argue that the proliferation of guns in America is exactly why we cannot repeal the 2nd Amendment.

Basically, I need a gun because everyone else has one. Again, this argument is not without merit, but it is also, in a way, defeatist. Eliminating gun violence seems to be the common goal. If your position is do nothing, we have years and years of history to prove that doing nothing has not worked.

Then again, doing something has not been all that successful either. Ever since Ronald Reagan and Jim Brady were shot back in 1981, much of the public has demanded “gun control” and politicians have talked big, but done little. Calls for “keeping guns out of the hands of the wrong people” show a childish naiveté of the utter complexity of our gun problem. Of course, certain measures like background checks and waiting periods are somewhat sensible and mildly effective. But something drastic is needed. Doing a life jacket count is sensible, but wouldn’t it be more prudent to turn the boat so you don’t hit the iceberg?

Turning to the Popehat point, this one is the most difficult for someone who cherishes rights like the 1st, 4th, 5th, and 8th to get past. So many lawyers like me fight constantly against infringements on those rights, so the hypocrisy of advocating the total removal of the 2nd is not lost on me. But the difference is in the rights themselves. Rights like the right to due process or against illegal search and seizure protect us from our government. The 2nd Amendment only arguably provides an ineffective tool to attempt to accomplish the same thing.

Altering the Constitution should not be undertaken lightly, and to be quite honest, getting rid of the 2nd Amendment might be a terrible idea with disastrous consequences. But we should only hesitate at the implications of taking such a step, not at the violation of some sacred document. The framers of our Constitution did not walk away from ratification as though they had written a second Bible. They made sure there was a framework for change. The process for repealing a constitutional amendment is an incredibly high bar and one that seems almost impossible in our currently divided nation. But if America could unify to get the beer taps back in the saloons, could our generation at least have an adult conversation about whether or not the 2nd Amendment causes more problems than it is worth?

Reasonable people can certainly disagree on whether repealing the 2nd Amendment would cause an unraveling in the fabric of our nation. But we have seen that tinkering around the edges of the 2nd Amendment has already pulled at the threads of our other rights. With each successive attempt to control our gun problem, we find out how unsolvable the problem truly is. Perhaps it is time to consider that the only real solution to America’s gun problem might be the most obvious one.

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