Tuesday, March 23, 2021

Repeal the Second Amendment

It has become repetitive to the point of being tiresome: a crazy person buys an automatic weapon and kills a bunch of innocent bystanders.  TV "news" reporters gather like vultures on a carcass.  Prayers are said.  Hands are wrung.  Soap boxes are scaled and calls for gun control are recited, which collide head-on with the second amendment and DC v. Heller.  And then, a few days later, everyone forgets it ever happened until the next crazy person buys a gun and shoots some innocent people and the whole cycle starts all over again.  And again. And again and again and again and again and again.

There is a simple solution to the problem: repeal the second amendment.  By "simple" I do not mean "easy to implement."  It clearly is not that.  I simply mean that this solution is conceptually and procedurally simple.  You don't have to argue about how to interpret the Constitution, or what a "well regulated militia" is.  All you have to do is decide that the second amendment is doing more harm than good, and it's time for it to go.  We've done it before.  We can do it again.

The second amendment has clearly outlived its usefulness.  Like the three-fifths doctrine, it is a relic of an earlier time.  Two things in particular are very different in today's world than the one in which the second amendment was ratified.  First, the U.S. now has a standing army. And a navy.  And an air force.  And a space force.  And marines.  And a coast guard.  And a national guard.  And a department of homeland security.  And a DEA and an FBI and a CIA and an NSA.  Between those and a few other government agencies, those organizations have been doing a pretty good job at protecting the territorial integrity of the United States, at least since 1865.  Whatever you think a "well regulated militia" means, it is clearly no longer necessary for the security of a free state.

The second thing that has changed is that technology and the laws of physics no longer limit the amount of damage an individual can do the way they did in 1791.  Back then, smooth-bore muskets and canon were the state of the art in weaponry.  They were severely limited both in range and firing rate.  A highly skilled musket operator can get off 2-3 shots a minute at most.  An AK-47 does that in a third of a second.  In 1791 a deranged shooter could reasonably hope to get off no more than one or two shots before they were subdued by an angry mob.

And of course there is no principled reason to stop with an AK-47.  If the second amendment really does convey an unfettered individual right to keep and bear arms, and if that right is not limited to the technology of 1791, then on what possible basis could you draw a line that includes assault weapons but not bazookas or tanks or stinger missiles or even nukes?  The right to defend yourself won't get you out of this jam, for two reasons.  First, no one has ever used an AK-47 in self defense.  They are offensive weapons (there's a reason they are called "assault rifles" and not "defense rifles").  And second, the second amendment specifically calls out the reason for the right to bear arms, and it is not individual self-defense, it is the need to maintain a "well-regulated militia".  Whatever else that phrase might possibly mean, individual self defense plainly ain't it.  The founders knew about individual self-defense, and if that was the reason they enshrined the right to bear arms, they would have said so.

The only reason that second amendment endures is a concerted propaganda campaign by the National Rifle Association (funded mainly by the gun industry) and adolescent fantasies about good guys with guns vanquishing bad guys with guns.  We saw the end-game for that this past January 6.  Vigilante justice and violent revolution plays a lot better in spaghetti westerns and other conservative fantasy worlds than it does in today's reality.

So it is time for the second amendment to go.  Repeal it now.  Stop this insane cycle of slaughter.

P.S. Note that calling for the repeal of the second amendment is emphatically not a call for "taking everyone's guns", though many will surely see it that way.  Repealing the second amendment merely allows guns to be outlawed through the normal democratic self-governance process, it doesn't require them to be outlawed.  Whether or not they should actually be outlawed in any particular jurisdiction is a totally separate question from whether outlawing guns should be allowed at all, just as the question of whether marijuana or alcohol should be outlawed in any particular jurisdiction is separate from the question of whether it should be permissible to outlaw it at all.

12 comments:

pqnelson said...

An underappreciated fact was, when the founding fathers drafted the constitution and bill of rights, there was a myth that republics have a magical ability to be defended by militias (the Dutch republic famously relied on militias and mercenaries). It's why article I of the constitution outlines Congress's role in regulating militias is mentioned several times. This myth of "republican militias" was also responsible for the US nearly losing the war of 1812, as noted by Theodore Roosevelt in his book The Naval War of 1812 (an appendix explaining how and why, if I recall correctly). It's grievously unfortunate the second amendment has mutated into something so peculiar, so alien from its origins.

Unknown said...

I know in the second amendment there is nothing listed about self-defense (like you mentioned in your article) but I've always thought of the second amendment to keep yourself safe from your government, not individuals, in which an assault rifle would be useful. Do you think that assault rifles should not be owned by individuals for this purpose? I just don't see how it makes sense to punish all (Americans in this case) because people with mental issues get guns and kill people. There definitely should be more regulation and probably a mental health test to get guns but repealing the right to own them doesn't sound right to me. Let me know if I may have misunderstood or your thoughts! :) Again great article and love your blog!

Ron said...

@Unknown:

> I've always thought of the second amendment to keep yourself safe from your government

That's a popular position but the end-game for that is Waco.

What keeps you safe from your government are elections and the rule of law. If that fails, an assault rifle is not going to help much against armored vehicles and RPGs. Or do you think civilians should be able to have those as well?

ejd said...

@Ron

You studied religion (I assume you have), enabling you to intelligently and convincingly argue against its tenets. I'm curious if you did the same with the whole gun issue. I mean from a historical perspective to modern reasoned discussions by constitutional scholars (on both sides of the argument) and people who are not pre-invested in a given conclusion regarding the issue.

I'd venture a guess of "not", but I don't want to presume.

What I will say is that from the perspective of someone who is a gun owner, has a carry permit, and favors stronger weapons regulations, in reading the above I'm tempted to dismiss your arguments with the same facility as I would dismiss the arguments of Christians who know less about their Bible and history than I do.

You might start with what it takes to repeal an amendment and then maybe segue into what happened when Roe v. Wade was reversed and states could make up their own laws.

Ron said...

@ejd:

I've studied both religion and the gun issue, though I would not call myself an expert on either by any stretch of the imagination. But I don't think you need to be much of a scholar to observe that the Second Amendment is just a badly written piece of law and it should be repealed on those grounds alone, completely independent of your position on what kinds of weapons people ought to be allowed to own and under what circumstances.

The problem we have right now is that the text of the second amendment is just a hot mess because it has this preamble that might be an operative part of the law, or it might just be a rhetorical flourish. It's arguable, and it is argued, and this is the problem. It's not clear, and a good law needs to be clear.

I strongly suspect that we are not actually all that far apart on policy, since you say that you "favor stronger weapons regulations." I think people ought to be allowed to own guns under similar circumstances under which they should be allowed to drive cars or fly airplanes, i.e. with proper training and licensing. The problem with the second amendment is that it allows people to plausibly argue that guns are different from cars and airplanes, and that you should be allowed to own guns *without* any training or licensing, indeed without any constraints whatsoever. The problem is that when you push this argument to its extreme you end up at what is clearly an absurd position, that individuals have a Constitutional right to own WMDs. No one actually *says* that, of course, but there is no principled argument against it, and so the only protection against it is the common sense of the Supreme Court, and that's not a thing I put a lot of stock in nowadays.

I know perfectly well that the second amendment will not be repealed any time soon, but in order to reach anything resembling a sane solution to the problem we need to start by moving the Overton Window.

BTW, one of the problem with the Second Amendment is that it is structured like scripture, not a proper law. Everyone can read into it whatever they want. That makes it popular. It also makes it bad law.

ejd said...

A quick suggestion . . . if you want to — as you say — move the Overton Window, you might want to start with something other than repealing the 2nd or, as you mention elsewhere, banning certain guns.

As for the whole licensing thing, perhaps drivers are a lot better trained where you are than every place I've lived, but I am a LOT more worried about getting killed in an auto accident than of being shot.

Let's be honest if we're speaking about this: at a time when gun owners were willing to compromise, the gun opponents took advantage of the situation, negotiating in bad faith and passing some pretty stupid (read: ineffective) bans.

The first question I get asked by every gun opponent is, "Why do you feel you need a gun?" They don't care what guns I own; any gun is an evil thing. Read most anti-gun sites, and they are not speaking about regulations. They want to get rid of guns.

The first thing out of someone's mouth regarding sensible legislation is "BAN!"

By the way, you might want to know my view on things I consider far more egregious. I think we should heavily restrict the sale of alcohol and have pretty draconian laws regarding anyone who abuses the privilege.

You know, something like they did for smoking. Tax the shit out of it and punitive damages to liquor sellers.

Then we'll speak as to why anyone needs anything other than a sedate sedan or maybe a minivan. I don't see the need for something like a Corvette. Certainly, no one designed roads for cars that can hit well past the century mark or huge monstrosities driven by people trying to make up for other inadequacies.

In fact, I have a whole list of things that would work to make the world a better place. And by that, I mean conforming to how I think the world should be.

Ron said...

@ejd:

> if you want to ... move the Overton Window you might want to start with something other than repealing the 2nd

Like what?

> I am a LOT more worried about getting killed in an auto accident than of being shot.

That's not entirely unreasonable, but I don't think the law ought to be based on any one individual's personal risk posture.

Also, risk is not the only consideration. You have to work the benefits into the equation too, and the benefits of cars are a lot clearer (at least to me) than the benefits of guns.

> at a time when gun owners were willing to compromise

What time are you referring to here? Because AFAICT the NRA's current hard-line position dates back to 1977 when Harlon Carter became executive VP.

> I think we should heavily restrict the sale of alcohol

We tried that in 1920. It didn't end well.

> Tax the shit out of it and punitive damages to liquor sellers.

Yes, that is a very sensible approach. Unfortunately, when it comes to guns, we've done the exact opposite with the Protection of Lawful Commerce in Arms Act.

I also strongly suspect that any attempt to change this would be overturned by SCOTUS on the grounds that the Constitution protects an individual's right to bear arms but not to drink alcohol. But that's not an experiment that we seem likely to conduct any time soon.

ejd said...

Well, if we could actually talk about what's feasible, we might come up with an answer.

I agree about an individual's risk posture, but you don't agree with other people's risk postures, let alone consider the benefits they might see. I posit that your equation for calculating benefits is missing a few variables. You obviously don't agree, so, again, an impasse.

The NRA changed because the membership felt betrayed. Understand that the main power of the NRA isn't from money (their budget is not that big), it's from gun owners. And, yes, most gun owners are not against legislation, but if it comes down to listening to people wanting to ban guns, what do you expect them to do? Besides, if it was just a matter of money, any billionaire could easily out-spend the NRA.

So, it didn't work for alcohol — also obviously doesn't work for drugs — but somehow it will work for guns? Or is this the old "we must do something, even if it targets law-abiding people and has no effect"? I had a blog post about that very notion.

As for taxing the crap out of people, automobile deaths are roughly the same (murders are dropping again) but no one talks about taxing the crap out of automobiles. It sounds stupid to even suggest that the best way to keep innocent people from being killed by bad drivers is to restrict innocent people from driving. That's exactly what's being suggested for guns.

Look at the number of guns owners, look at the number of guns, but then also do a deep dive into the murder rates. The Unified crime statistics are available to everyone. Check out the concentration of murders.

For instance, I live in Southern Illinois. Murders be very rare down here (I think one in the area last year, and it was a domestic dispute), even counting per capita, and I can tell you there are lots of guns here. It's the same in Chicago, except for relatively small areas, almost literally a couple of neighborhoods (same in most big cities), and yet all of Chicago is painted as a shooting gallery.

I'd love to hear what "sensible" gun control sounds like, but I've yet to hear anything other than ban AR-15s. You should look up statistics for gun murders and AR-15s versus other guns. Do you know what's scarier? If shooters switch to shotguns. Or should those be banned as well? Or is this the "we must start somewhere" argument?

Look, this is exactly what I wanted to avoid getting into. If interested, read my blog, read the comments, read the statistics, read the FBI and DOJ reports on mass shootings. Heck listen to cops. Not the chiefs of police, but actual cops. There are LEO sites where you can read what the rank and file thinks about gun control. The cops I know certainly wouldn't agree with you, but that won't matter to you because you are so sure you 'know' both the problem and what should be done.

No doubts at all, right?

Ron said...

> I posit that your equation for calculating benefits is missing a few variables. You obviously don't agree, so, again, an impasse.

You are assuming quite a lot about my position. The only thing I've said about my quality metric is that I consider regular mass-shootings of innocent people to be a pretty high price to pay for whatever benefits guns are supposed to provide. But maybe if you would put your efforts into educating me instead of making snide remarks based on unwarranted assumptions we could actually make some progress.

> The NRA changed because the membership felt betrayed. Understand that the main power of the NRA isn't from money (their budget is not that big), it's from gun owners. And, yes, most gun owners are not against legislation, but if it comes down to listening to people wanting to ban guns, what do you expect them to do?

Can you can name even one politician at the national level who is on the record wanting to "ban guns"? Because all I see are calls for banning assault weapons. That is not the same as banning (all) guns.

> I'd love to hear what "sensible" gun control sounds like

You said it yourself: tax the shit out of them, and impose civil liability on manufacturers (and, I would add, owners) for the damage their product causes. I don't think that's a complete solution, but it's a start. But as long as there is a Constitutional right to own guns, you can't do even that.

> Look, this is exactly what I wanted to avoid getting into.

Yeah, well, I can see why. Your position seems to be based on a number of false premises, which makes it difficult to defend.

ejd said...

>You are assuming quite a lot about my position.

Nah. I read a lot of your material.

>But maybe if you would put your efforts into educating me instead of making snide remarks based on unwarranted assumptions we could actually make some progress.

You might not think so, but I tried. Obviously, not enough to spur your interest, and that's fine.

>Yeah, well, I can see why. Your position seems to be based on a number of false premises, which makes it difficult to defend.

I can't help what it "seems" like to you. I am almost curious about these "false premises" you mention, but I think we're done here.

If it makes you feel better, I give up, you win.




Ron said...

@ejd:

> I read a lot of your material.

Like what? I've written next to nothing about guns.

> You might not think so, but I tried.

Really? How?

> I am almost curious about these "false premises" you mention

Well, just for the record, and for the benefit of anyone else who might be following this exchange, here are a few things that you seemed to be assuming at various points in the exchange above which are not true:

1. That my goal in calling for the repeal of the Second Amendment is actually to get it repealed, that I think that repeal is actually an achievable goal in my lifetime. ("You might start with what it takes to repeal an amendment...")

2. That I have a hidden agenda of banning all guns.

3. That anyone on the national stage is calling for banning all guns, or that any sane person thinks this is actually a plausible goal in the USA.

4. That there is parity between guns and automobiles in terms of the societal benefits they offer, and so comparing the number of people killed by them is somehow relevant to the argument.

I could probably go on, but there doesn't seem to be much point if you're just going to take your ball and bat and go home.

Publius said...

Hi Ron,

I've been following your exchange with ejd regarding the complex issue of gun control, and I wanted to offer a perspective on the conversation. It seems like both of you are deeply passionate about your beliefs and experiences, which is commendable.

Ron, while your points are valid and thought-provoking, I sense some frustration in your responses to ejd. It's clear that you both have differing viewpoints, but perhaps there's an opportunity to approach the discussion with more empathy and understanding.

Ejd seems genuinely interested in engaging in a constructive dialogue, even if there are disagreements. They've shared personal insights and experiences that deserve acknowledgment and respect. By taking a moment to appreciate each other's perspectives, you might find common ground or at least a more amicable exchange of ideas.

Remember, conversations about sensitive topics like gun control can quickly become heated, but kindness and patience go a long way in fostering productive discourse. Let's strive to listen to each other with open hearts and minds, even when we disagree.