Saturday, February 03, 2024

Why I want to repeal the Second Amendment

About three years ago I wrote a blog post calling for the repeal of the Second Amendment to the Constitution of the United States.  I hope it goes without saying that I did not (and do not) harbor any illusions about this actually happening any time soon.  I wrote it in a fit of frustration at having to watch over and over again the futile ritual that America goes through every time there is a mass shooting: condolences are offered, prayers are said, there are calls to Do Something, and then, of course, nothing gets done.  Because there's this pesky Second Amendment.

By calling for its repeal I was hoping to point out that the Second Amendment is not actually a necessary consequence of the laws of physics, nor is it gospel handed down from on high by God.  We actually can change it, and the only reason we don't is because not enough people want to, or even think it's possible.  I was mostly just standing up to say that it is in fact possible if enough of us decide we want to make it happen.

But I want to go one step further here and advance an explicit argument for why we should.  The argument is quite simple: the Second Amendment is both bad law and bad policy.  Note that these are two different things.  I think that either one on its own makes a compelling case for repeal, and the two together actually make it a slam-dunk, but it is nonetheless important not to conflate the two things.  They are completely unrelated to each other.

What makes the Second Amendment bad law is that it is unclear what the amendment actually means.  It has this really weird structure, with its infamous introductory clause: "A well regulated Militia, being necessary to the security of a free State..."  Is that intended to be an actual operative part of the law, or is it merely a rhetorical flourish?  And if it's the former, what does it actually mean?  No one knows.  There are well-informed arguments advanced by scholars in support of both sides, and resolving the dispute to everyone's satisfaction is about as likely as as reconciling Catholicism and Protestantism.  Because of this, the actual intended meaning of the Amendment is unclear, and an unclear law is a bad law.

That is the entirety of the first part of my argument.  At the very least, the Second Amendment should be repealed and replaced with something that actually says what it is intended to mean instead of leaving everything up to politics and the Supreme Court.

But, as I said, I have a second argument, which is that the Second Amendment is bad policy.  How can I possibly argue that in light of the fact that I've just taken the position that the main problem with the Second Amendment is that it is unclear what kind of policy it actually advances?  It turns out not to matter.  Whatever the Second Amendment actually means (if indeed it actually means anything) one thing is beyond dispute: it explicitly enshrines the Right to Bear Arms and so raises it above a whole host of other unenumerated rights.  Like, for example, the right to vote, or to travel, or to not be discriminated against based on the color of your skin or your gender or your sexual preferences.  None of those things are written into the Constitution, but the "right to bear arms" is.  In my humble opinion, that is, at best, a failure to get our priorities straight.

This is not to say that I want to take away everybody's guns.  This is a common canard on the right, but I have never heard anyone call for complete prohibition.  I'm sure there are some peaceniks who would like to see every last gun beaten into a plowshare, but I'm not one of them, and I've never actually heard anyone advance this as a serious policy proposal.  Prohibition is a terrible policy simply because it doesn't work.  But in between prohibition and a Constitutionally protected right lies a very broad range of much saner policy choices, like licensing and background checks, which are now being tossed out the window because you can't burden a Constitutionally protected right even if it means that innocent people, including children, have to pay with their lives.  I don't want to repeal the Second Amendment because I want to get rid of guns, I want to repeal the Second Amendment because that is a pre-requisite to even having a sane policy discussion about guns.

What would a sane policy discussion about guns look like?  I think it should start with the observation that guns are not just dangerous, but inherently dangerous.  Unlike every other consumer product, the *purpose* of a gun is to end life.  This is not to say that guns cannot be used in other ways.  I get that some people simply enjoy target shooting or making loud noises on holidays.  But the fact that ancillary uses exist does not negate that the primary purpose of guns, the reason they were invented and the task they are optimized for, is to kill.

Now, I am emphatically not saying that killing is an unalloyed evil.  There are situations in which killing has value; sometimes it can even rise to the level of a necessity.  My neighborhood is overrun with deer, and shooting a few of them on occasion would definitely be a good thing.  I don't see much wrong with using a gun to hunt for food.  And I am keenly aware that one of the reasons I can safely walk around without a gun is that there are police and soldiers trained to use guns and other weaponry.  I do wish it were otherwise, but it isn't, and that's how it's going to stay.  The existence of violence *is* a consequence of the laws of physics.

The above notwithstanding, I do think that all else being equal, less killing is better than more, and society should particularly strive to minimize the killing of *innocent* people, that is, people who have not voluntarily undertaken the inherent risks of being around guns.  And the only way I see to achieve that goal is to restrict who has access to guns and under what circumstances.  I have to stress again that this does not mean getting rid of all guns.  It means licensing, background checks, and some pretty severe restrictions on carrying guns in public places.  None of that is possible under the current legal interpretation of the Second Amendment, which is one of the reasons I think it has to go.

That is the end of my argument.  But before I close I would like to address three anticipated counter-arguments.

The first is that cars kill about as many people as guns do.  This is true, but this doesn't make guns and cars comparable.  For starters, there is no Constitutionally enshrined right to drive, and that makes it possible to impose reasonable restrictions on driving and cars to make them safer.  Furthermore, the societal benefit of driving is vastly greater than the societal benefit of widespread gun ownership.  If we got rid of all privately held cars, the economy would grind to a halt.  If we got rid of all privately held guns, all that would happen is that some gun enthusiasts would grumble and complain, a few people who work for gun manufacturers would lose their jobs, and a lot fewer people would die.  (Personally, I would call that a win, but please note that I'm not actually advocating for this because I also believe in personal freedom, and there are less draconian ways of keeping people safe.)

The second is that people ought to have the right to defend themselves.  To which my response is: defend themselves against what?  There doesn't seem to be any consensus among gun-rights activists as to what the correct answer to that question ought to be.  And it matters.  A lot.  A lot of the rhetoric around gun-rights advocacy seems to turn on the phrase "personal protection" but that is just as fuzzily defined as "assault weapon".  Does "personal protection" extend to defending my personal property?  Against whom?  Do the adversaries against which I have the right to defend myself and/or my property include the government?  Because the founders were explicitly concerned about allowing states the right to defend themselves against military overreach by the federal government.  If the states retain the right to resist the federal government by force (and Texas certainly seems to think that they do) then why not individuals?  And if I have a constitutional right to defend myself against the government, why can't I have a bazooka?  Or a tank?  Or a nuke?  On the other hand, if I don't have a constitutional right to defend against the government, then how do you justify claiming the right to own an AK-47?

Which brings me to the third anticipated counter-argument, which is that I am just a stupid twit, profoundly ignorant of the history of the Second Amendment and why it is important.  That may be true.  I'm not a historian, just a citizen.  I actually think my knowledge of history is better than what is on display here but I don't think that matters.  The history of the Amendment is mainly invoked as part of the argument over what it means, and as I've already said, I don't think that argument can be resolved, which is one of the reasons I think the right answer here is a rewrite, not a rehash.  But more than that, I don't believe in originalism.  I think it's a completely arbitrary standard invented out of whole cloth to advance a political agenda.  We are not living in 1788 and I see no reason we should allow ourselves to be governed by the standards of that time.  When the Second Amendment was written, the United States did not have a standing army.  Today it does (and marines, and a navy, and an air force, and a space force).  A well-regulated militia (whatever that might actually mean) may have been necessary to the security of a free state in 1788, but it is certainly not necessary any more.

Today all sane people agree that somewhere between a BB gun and a nuke there is a line that ought to be drawn beyond which any individual right to bear arms should not extend.  But the Amendment provides absolutely no guidance as to where that line is because the people who wrote it had no idea that something like a nuke -- or even an AK-47 -- was even possible.  The state-of-the-art technology of the day was a muzzle-loader.  If you were extremely skilled you could get off one shot every 15-20 seconds or so.  It is simply not possible for an individual to use such a weapon to carry out a mass shooting.  You might be able to get off one shot, but you would surely be tackled by an angry mob well before you managed a second.  (It is likewise practically impossible for an individual to use a muzzle-loader for personal defense.)

This is the technical environment in which the Second Amendment was written.  It was simply not designed for today's world, and it is not up to the task.  It is not possible to use the Second Amendment to draw the line between reasonable and unreasonable weaponry for personal use because the people who wrote it lived in a world where AK-47's and nukes not only did not exist, they were inconceivable.

Relying on the Second Amendment to inform us about gun rights today makes about as much sense as looking at horse-drawn carriages to figure out what the speed limit should be on the interstate.  And yet, that is what we are currently doing, and that is what we will continue to do as long as the Second Amendment is on the books.  And as long as that is the case, the decisions that get made will be made on the basis of politics and unprincipled arguments, because there simply are no other possibilities.  There are hard limits to the extent to which 18th-century knowledge and wisdom can inform 21st-century decisions.


In the interest of full disclosure I wish to reveal that despite the fact that I generally side very strongly with individual freedom, I do find gun-rights advocacy to be quite annoying.  Many gun-rights advocates seem to have this fantasy about living out a real-life version of a spaghetti Western melodrama where they play the part of the hero.  I can tell you from both recent events and personal experience that this is indeed a fantasy.  Even if someone breaks into your house, the chances that having a gun on hand will change the outcome for the better are very small.  In 1991 I came home to find a robber in my house, who took a pot-shot at me with a 0.38 on his way out the window.  I escaped serious injury by less than a meter.  The entire sequence of events played out over less than five seconds, and even if I had a gun of my own there is no way it would have made a difference, except that it would have introduced yet another possible way I could have gotten injured or killed.  Under no circumstances would I have been able to use it to deter the thief.

Gun-rights advocates like to brandish slogans like "the only thing that stops a bad guy with a gun is a good guy with a gun."  It's simply not true.  A much more effective way of stopping bad guys with guns is to stop the bad guys from ever getting a gun in the first place.  (Another annoying slogan is, "Guns don't kill people, people kill people."  That one isn't true either.  A lot of people die in accidents involving guns, in which case it really is the gun doing the killing and not another person.  But even in cases where it is "people" doing the killing, all too often they are doing the killing with guns.

And this is actually what annoys me the most about gun-rights advocates: they don't actually have a principled argument to support their position, and so they rely on sketchy history and sketchy slogans and sketchy politics in order to cling (yes, I'll go there) to their guns.  I suppose they do it because they are afraid, afraid that someone will "come for their guns", upon which someone will come for them.  And yeah, that's possible, though if someone does "come for their guns" it won't be me.  I'll buy a gun myself before I let that happen.  But I'll say this: if some day a generation rises up that gets sick and tired enough of the bloodshed to come for their guns, it will be no one's fault but their own.  I almost certainly won't live to see it, but if that day ever does come, don't say I didn't warn you.