Make them repeal the 2nd Amendment

Predictably enough the shooting spree committed by Larry Gene
Ashbrook in a Baptist church in Fort Worth, Texas, has precipitated
almost immediate kneejerk reactions — beginning with Janet Reno — in
favor of more gun control. Although it is difficult to see on what
legitimate grounds Ashbrook could have been denied gun ownership —
unless we’re ready to do so on the basis of a 20-year-old arrest for
simple marijuana possession and a reputation as being a bit eccentric —
the hue and cry has begun and will be amplified.

In response we will surely see dozens of articles, columns and
speeches making the kind of point I made above — that any gun control
law that could be passed now (I make no guarantees about the near
future) could not conceivably have prevented Larry Ashbrook’s murderous
act. This may be an intellectually compelling argument, but politically
it is at best a rear-guard action and at worst a consistent loser. The
movement for stricter gun control has never thrived on intellectually
cohesive arguments, but on emotional responses to tragic and outrageous
acts of violence, feeding the natural human desire to want to “do
something” even when one harbors doubts that the something in question
will really help.

It’s time to shift the terms of the debate. Advocates of the freedom
to own firearms had started to do so by concentrating on passing
“concealed carry” laws, buttressed by academics like John Lott, whose
studies have demonstrated rather conclusively that an armed society is
not only a polite society but ultimately a safer society. But much of
that momentum has been reversed by the opportunistic response of gun
control advocates to school shootings and other tragedies.

One of the best ways to accomplish this might be to restore the
Second Amendment to public debate — not in the sense of using it as a
mantra but by reminding gun control advocates that the Second Amendment,
for better or worse, stands in the way of their plans and has to be
dealt with. Here’s one way such an approach might work.

“I’m sympathetic to your desire to do something about gun violence,”
we might tell control advocates, “and I’ll be happy to discuss the pros
and cons of various kinds of gun control. But before we get to that, you
really need to repeal the Second Amendment. Like the rest of the Bill of
Rights, it is rather unambiguous. ‘The right of the people to keep and
bear arms shall not be infringed’ doesn’t leave much room for the kind
of control that might have some hope of being
successful at reducing gun violence. Sure, you can quibble about what
‘infringed’ means as we enter a new millennium. But you can’t do all
that much and hope to maintain much semblance of a constitutional
government.

“Lots of people favor censorship, including political censorship. But
while some restrictions on freedom of speech have been imposed (too many
in my opinion), the First Amendment has prevented the establishment of
any regime of thoroughgoing censorship. Censorship advocates had some
success but have been effectively stymied from establishing real
censorship.

“If you think that’s a good outcome, you need to understand that the
Second Amendment is part of the document that preserves freedom of
speech, freedom of association, the right of a trial by jury and a
number of other clearly desirable policies. If you simply pass laws that
ignore the amendment by passing laws as if it didn’t exist, you
undermine the authority of the First Amendment and other parts of the
Constitution.

“Now you might have a point that if the Founders had any idea what
kind of destructive weapons human ingenuity would develop by the turn of
the millennium they wouldn’t have included the Second Amendment. But to
institute the kinds of controls you have in mind, you need to start
by making the argument that the amendment is an anachronism and needs to
be repealed. There are precedents. We repealed prohibition. We passed
amendments that outlawed slavery, an institution the original
constitution implicitly recognized.

“Once the Second Amendment is repealed, we’ll be happy to discuss the
pros and cons of various gun control proposals without what amounts to a
constitutional prohibition hanging over us and tainting the debate.
Opponents of gun control will not longer be able to fall back on the
intellectually lazy expedient of citing the Second Amendment and
declaring the argument over. They’ll have to meet your arguments for
control on the level playing field of honest debate.

“We acknowledge that changing the constitution is a difficult
procedure and purposely so. But if, as so many polls seem to show, the
people want more gun control, it shouldn’t be that difficult to
persuade them that the first step is to get rid of the amendment that is
such an emotional impediment to the policies you think are so sensible
as to be almost self-evident. If you don’t take that step first, the
freedoms and protections afforded by the other parts of the Bill of
Rights will ultimately be threatened and the Constitution will be a dead
letter.”

In Congress, people who question the idea of gun control as an
effective form of crime control could take a similar tack. “Gun control?
Sure, we’ll talk about it. But not until you repeal the Second
Amendment. If it’s as anachronistic and unpopular as you say, it
shouldn’t be much of a problem. And it will open up the field for the
kind of comprehensive control you really want.”

This argument is similar to the position a number of liberals who
really dislike guns and favor gun control, such as Alan Dershowitz and
Laurence Tribe of Harvard, have reluctantly come to. Yes, comprehensive
gun control would be a desirable policy, they believe, but so long as
the Second Amendment is in place we can’t have it, just as we can’t have
a British-style parliamentary system or presidents elected for six-year
terms. If we impose it in spite of the Constitution, we undermine a
constitution that, while imperfect, on balance has a lot of desirable
features.

Some liberals believe already that repealing the Second Amendment is
a good idea, and a few have said so in public. Reminding them — every
time the subject comes up — just how large an impediment the amendment
is, in law and in justice, to their desires for a gun-free society,
might embarrass them into a campaign to repeal the amendment openly
rather than by stealth.

There are risks in such an approach. Supreme Court decisions on the
Second Amendment are much fewer than decisions on freedom of speech and
expression, and the direction is nowhere near as clear. I’m not sure
just how the court might rule if presented with an unambiguous violation
of the Second Amendment and neither are most people — which is probably
one reason gun freedom advocates aren’t that eager to bring such a case.
And it might turn out that the people (or a large enough majority of
them), if presented with persuasive arguments on behalf of repealing the
Second Amendment, might shrug their shoulders and say, “OK, if that’s
what it takes to get the kind of gun control we need to live in safety,
let’s do it.”

I don’t think so. I think if most of the people were presented with a
sustained campaign on behalf of repealing the Second Amendment they
would ultimately reject it. But I could be wrong.

Regardless of where public sentiment lies on the issue, however,
there’s little doubt that most proposed gun control statutes constitute
a clear violation of the Second Amendment. We should rub the noses of
control advocates in that fact again and again, untiringly, and invite
them to do it the honest way, the way that has a chance of preserving
rather than undermining a constitutional order that almost every
American but a few real radicals believes has on balance been beneficial
to the country.