Thursday, August 8, 2019
The Antiquated Second Amendment
One of the most confusing, misunderstood, and misapplied pieces of the Constitution is the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As an editor, I admit that this is a rather pathetic attempt at lucid English. Which is why it has been subject to so many tortured interpretations over the years and has in recent years been twisted by a conservative court to mean something that two hundred years of court precedent repudiate.
So, let’s talk about this troublesome sentence. Most conservatives simply take the second half out of context and make a blanket right out of it. But the first half provides the context. The right to bear arms is guaranteed within the confines of the need for a well-regulated militia and for the purpose of securing the freedom of the state. So, the right to bear arms, as a constitutional matter, has nothing to do with hunting or self-defense or, especially, enabling us to fight against the national government if we find ourselves at odds with it.
As constitutioncenter.org explains, however, two things have changed significantly since the eighteenth century: the militias mentioned in the amendment have been absorbed into the national military and the types of weapons used in military conflict have changed drastically. No longer are they the types of weapons individuals carry for lawful purposes such as hunting or self-defense. What this means, in plain English, is that the Second Amendment is completely outdated and antiquated. The circumstances under which it was created have changed and the concerns it was written to address no longer exist. So, we’re stuck with some obsolete verbiage that we twist in a partisan manner to suit our own points of view. What we really need is a common-sense revision of the Second Amendment that would enable us to pass sensible legislation that will prevent most of the mass shootings we experience on a continual basis.
Let me make three other points. First, an editorial I read not long ago explained that the phrase “bear arms” is a term we use only in reference to military situations. As the writer put it, you don’t bear arms against a rabbit. Bearing arms is, as the Second Amendment suggests, a military matter. In other words, keeping and bearing arms is not synonymous with just owning a gun for nonmilitary purposes. Therefore, the Second Amendment does not strictly prohibit the government from regulating the ownership of weapons that are not used for military service. At the time of its writing, it prevented the government from restricting citizens from owning “arms” that could be used in well-regulated militias at need. These militias were essential because the National Army was small and inadequate for a full-scale war. This is why regular citizens such as Martin Harris were conscripted for short-term skirmishes during the War of 1812. And members of these local militias used their own weapons.
But times have changed dramatically. We no longer rely on local militias. We have a massive, well-armed standing military, and so, as I suggested above, the Second Amendment, as written, is irrelevant to our current society. We do not need citizens to own military-style weapons so that they can fight our enemies at a moment’s notice. Indeed, the unrestricted ownership of these killing machines is one reason why we are seeing such carnage in our public places by a few unhinged and deluded lunatics.
And this leads to my second point. Most people simply assume that the rights enshrined in the Constitution are inviolable. But rights are always attached to responsibilities. We only enjoy rights as long as we do not abuse them. Freedom of speech is not an unbounded right, even though it too is protected by the Constitution. I do not, for instance, have the right to say certain things in certain places. I also do not have the right to board a commercial airplane without going through a thorough and invasive search of my person and belongings. If I try to carry my little Swiss Army knife onto a plane, I will be searched, and the knife will be seized. Why? Because of the act of one or two demented terrorists. Therefore, such searches and seizures are no longer considered “unreasonable” (see the Fourth Amendment).
The right to bear arms should be subjected to similar interpretation. As a society, we have long passed the point at which we, collectively, have proved ourselves capable of using guns responsibly. On average, over 36,000 people are killed by guns in America each year and another 100,000 are injured. Yes, I know, you would never shoot anyone indiscriminately. But an increasing number of Americans do not exhibit such perfect discretion. I maintain that we have forfeited the right to own any sort of gun we want to own because of our irresponsible behavior. Just as I cannot simply walk onto an airplane with my pen knife, I should not be able to just go buy a gun. I have to obtain a driver’s license and prove that I know how to drive before I can operate a car. At a minimum, we should require the same level of regulation for using a gun.
Final point. As so many have insisted in the past week, the right-wing rhetoric about mental illness and violent video games is bunk. Other countries have equal levels of mental illness and play violent video games. Only in America do we have semi-weekly mass shootings. Gun homicides in America are 25 times higher than any other high-income country. The difference? Lax gun laws. Similarly, the argument that more guns will create more safety is more than flimsy. We already have 393 million guns in America, spread among only 326 million citizens. If this talking point is right, we should be the safest country on earth. Obviously, this is nonsense.
I have an ultra-conservative neighbor who has claimed on social media that gun ownership is a God-given right. I don’t believe her family even owns a gun. But such is the power of tribal persuasion. We are both LDS, but I have to wonder if her God is the same as mine.