Repealing the 2nd Amendment

I thought that would get your attention.  One of the finest people I've ever known was a Priest at our parish when we joined the church about 20 years ago.  He is wise, smart, pragmatic, and tough.  All characteristics I admire greatly.  He subsequently moved on to other places and has recently retired in Arizona.  The interesting thing about him is that he was born and raised in New York, became a lawyer and practiced there for several years before turning to the Priesthood.  So his perspective on life is a bit different from your average clergy.

He has continued to keep in touch with several of us and forwards sermons and writings occasionally that might of interest.  I got one today and its a doozy!  I'm going to copy it in it's entirety below.  So depending on where you sit, either your head will explode if you're among those who will give up your guns when "they are pried from your cold, dead hands" or you will nod smugly and offer sanctimonious agreement if you are a progressive who wonders naively why "we can't all just get along".  Or you might be like a lot of people, me included, who are frustrated and sickened by the spate of mass murders that our country has suffered in the last several years.  You might have never considered this as even a remote possibility but are at your wits end and know something needs to be done.  You might look at our leaders of all stripes and realize that the vast majority don't have the fortitude or vision to accomplish anything substantive to change the dynamic. Or you might just be at the point of saying, enough is enough.

Let me say up front that I don't subscribe to this solution.  And I think that if it had a remote chance of happening, it's a long way off and would require some specific circumstances to see the light of day.  More on that later.  But I do think of the three solutions he offers, the second one has merit.  As a long time Constitutionalist I have always believed in our inalienable rights guaranteed by that precious document.  The right to keep and bear arms seems as fundamental as free speech or freedom of religion.  And we don't repeal any of the amendments, especially ones in the Bill of Rights, lightly.  It's a very, very steep hill to climb.  But I wonder.  Like other things that we've seen evolve, are we at a tipping point?

Over the last ten days I've seen the unending opinions and debates in the news and on social media.  The thing that strikes me is that everyone, literally everyone, seems to have the definitive right solution.  Whether it's ban guns, fix the mental health system, arm teachers, harden schools, or whatever, most commentators are hard and fast regarding the right solution.  There doesn't seem to be much intelligent or pragmatic discussion.  It's all emotion.  Whataboutism runs rampant.  Memes rule the day.  And I think that's true to some extent in legislative bodies and executive mansions in Washington DC and state capitals around the country.  Maybe it's because it's too soon and too raw, but I don't think so.  I think we've become a polarized country invested in our own opinions with not much ability to achieve consensus.

Now don't get me wrong.  I've got plenty of opinions.  If you've read this blog at all you're well aware of that.  Sometimes to a fault.  But I like to think I'm at least willing to listen.  I don't see much of that these days.  My fundamental opinion on this whole issue is that it's a complex problem and will require complex solutions.  What occurs with guns is only a part of the solution set.  But to get to a solution set, people have to be able to talk.  That seems to be a rare commodity these days.

In reality I don't see any way that a repeal of the 2nd Amendment is in the cards.  Anytime soon that is.  However, there are a couple of things that could swing the pendulum in the other direction.  If the carnage continues, more and more people are going to reach a point in which the demand for action will outweigh the concern for gun rights.  If you read the essay below, you'll see a rationale that is compelling for someone looking to end the senseless loss of life.  And as we see with every generation, attitudes shift.  Not to stereotype too much and there are always exceptions, but the young people I see these days below the millenial generation have a way different attitude about so many things that have been a given for my entire life.  That's not bad...it's just the way it is.  The influencers, the technology, the shinking world, the relationships they experience, the world that they see is different.  And I don't think accepting mass murders as one of the costs of living in the USA may not be something they are willing to tolerate.

What do I get from this latest mass murder event and the public's reaction?  One thing is that the 2nd Amendment is coming under fire like never before.  If our leaders and our population had the ability to discuss and compromise, perhaps we could come up with some solutions to restrict availability of the most dangerous weapons out there, develop a better tracking and registration system, and have minimal impact on a right that so many see as fundamental.  But I just don't see any ability to do that.

So I end with where I began.  If your head is exploding, don't say I didn't warn you.  If you think you're smugly right in wanting to ban guns, be careful what you're asking for.  You might think that the reaction of some of your fellow Americans regarding possessing a weapon as protection from tyranny is far-fetched.  There are plenty of examples where it's not.

What to Do about the Second Amendment?

The list of school shootings in the United States is sad, tragic and heartbreaking. Among the most noteworthy in recent years:

• February 14, 2018 – Marjory Stoneman Douglas High School, Parkland, Florida – 17 dead.

• January 23, 2018 – Marshall City High School, Marshall County, Kentucky – 2 dead.

• December 7, 2017 – Aztec High School, Aztec, New Mexico – 3 dead.

• November 14, 2017 – The elementary school at Rancho Tehanna Reserve, California – 6 dead.

• September 13, 2017 – Freeman High School, Rockford, Washington – 1 dead.

• April 10, 2017 – North Park Elementary School, San Bernardino, CA – 3 dead.

• December 14, 2012 – Sandy Hook Elementary School, Newtown, Connecticut – 28 dead.

There are many more school shootings where no one died, but whose victims suffered excruciating wounds and lifelong physical and emotional scars. And, of course, I have not mentioned the many horrific shootings that took place in locales other than schools: the October 1, 2017 Las Vegas shooting with 58 dead, the June 12, 2016 Orlando nightclub shooting with 49 dead, the December 2, 2015 San Bernardino, California Regional Center shooting with 14 dead, the April 16, 2007 Virginia Tech shooting with 32 dead, the July 18, 1984 San Ysidro, California McDonald’s massacre with 21 dead, or the August 1, 1966 University of Texas tower shooting with 14 dead. And, of course, there are many more.

And then, there is the daily gun violence on the streets of cities like Chicago and Baltimore, or the thousands of people each year who use a gun to commit suicide. In 2013, for example, there were 33,636 deaths due to firearms – 11,208 homicides, 21,175 suicides, and 505 deaths due to accident or negligence in the discharging of a firearm. The numbers are mindboggling.

The Debate on the Meaning of the Second Amendment

So why does a country as innovative, creative and vital as the United States tolerate such rampant gun violence? What is it about the United States that sanctions firearms to an extent that no other civilized nation in the world would allow? While there are no doubt many answers to these questions, the principle culprit, I suggest, is the Second Amendment in the United States Constitution. 

The wording of the Second Amendment is innocuous enough. It simply states: “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.”

Oddly enough, there were no Second Amendment Supreme Court cases before the first part of the 20th century. The first major Supreme Court case was United States v. Miller, 307 U.S. 174 (1939) which answered the question whether the Second Amendment restricts the government’s ability to regulate the private possession of firearms. The answer of the Court: No! The Court, in upholding the constitutionality of the National Firearms Acts of 1934, allowed a ban on machine guns and short-barreled shotguns. Certain types of deadly weapons, the Court ruled, could be restricted and even banned by the government.

With Miller, the United States should have been able to enact reasonable gun control legislation to insure the safety and protection of the public. After all, if machine guns could be banned, then why not any assault or rapid-fire weapons? 

However, since Miller there has been an alternative interpretation that maintains the Second Amendment protection of an individual right to a firearm is inherent in the concept of ordered liberty. No organization has been more staunchly unyielding in pushing this interpretation of the Second Amendment upon the nation than the National Rifle Association.  

Every time there is a shooting of innocents, whether of school children or adults, the National Rifle Association proclaims, “Don’t you dare take away our Second Amendment right to possess the firearm of our choice! We have a right to our guns!” For the NRA, the right to possess a firearm is a fundamental right, as fundamental as any in the Constitution. 

The argument of the NRA is that the Framers of the Second Amendment intended for every citizen to have the right to own guns, free from interference by the federal government. Any attempt to pass gun control laws limiting the right to own and possess firearms would have been seen by the Framers as violating the Amendment. This essentially libertarian argument insists that to keep and bear arms is akin to the First Amendment right to free speech – a fundamental aspect of individual autonomy, the infringement of which is tyrannical. 

On the United States Supreme Court, Justice Clarence Thomas is the most vociferous advocate for this position, beginning with his concurring opinion in Prinz v. United States, 521 U.S. 898, 938 (1997).

To understand the logic of the NRA and gun proponents such as Justice Thomas, consider the case of Silvester v. Becerra (February 20, 2018) in which the Supreme Court denied certiorari (refused to hear the case) of a challenge to a California law that imposed a 10-day waiting period for gun purchases. In his dissent of the refusal to hear the case, Justice Thomas argued that the Second Amendment is a “disfavored right” in the Supreme Court, and that had another right been so “cavalierly” treated, the Court would have undoubtedly intervened. “If this case involved one of the court’s more favored rights, I sincerely doubt we would have denied certiorari,” Thomas said. “I suspect that four members of this court would vote to review a 10-day waiting period for abortions, notwithstanding a state’s purported interest in creating a ‘cooling off’ period.” 

Notice that Justice Thomas equates the right to an abortion with the right to possess a firearm. For gun advocates, there is no difference. Any restriction on the Second Amendment right to possess a firearm demands the strictest scrutiny by the Court, just as in First Amendment cases.

So which position is historically and legally correct? Is it the position of Miller and subsequent advocates for reasonable gun control to promote and protect the public safety, or the position of the NRA and Justice

The Legal and Historical Background to the Second Amendment

No argument for a restrictive interpretation of the Second Amendment has been more persuasive or well-reasoned than that given by Professor David Yassky of Brooklyn Law School whose article, “The Second Amendment: Structure, History, and Constitutional Change” 99 Michigan Law Review 588 (2000) makes the case that the Civil War and the 14th Amendment to the Constitution made the Second Amendment obsolete.

Let me briefly summarize Professor Yassky’s article. For any who would like to read the entire article, go to google scholar, type in the author and article, and then download a PDF version. 

To understand the Second Amendment, one must first understand the separation of powers that is at the heart of our constitutional form of government. Just as the Constitution mandated three separate but equal branches of government to insure a system of checks and balances, so the Framers wanted to insure that the federal government was not so powerful that it could usurp the power of the states through military intervention. If, for example, the federal government required a standing army, then the way to check the power of that army would be by state militias.

The right to keep and bear arms was crucial to the Framers of the Constitution. But not for the reasons we may think today. The Framers envisioned state militias as a supplement (and a check) to a federal standing army. They believed that such an army posed a threat of both tyranny and military adventurism. They wanted to avoid both. 

The threat of tyranny was the fear that a federal army under the President as Commander in Chief could threaten or usurp the power of the states. The fear of military adventurism was that a President with or without the support of Congress could plunge the nation into military actions around the world. To prevent both tyranny and adventurism, state militias composed of citizen soldiers would act as a counterbalance to any Federal army. Militias could supplement or reinforce the Federal army in case of foreign threat, but also act as a check on any federal intervention that threatened states jurisdiction.    

At the time that the Constitution was written, the nation was bitterly divided over the role and even the existence of a Federal army. One anti-Federalist pamphlet stated, “A standing army…may be the most fatal instrument to public liberties.” Those who did not want the Federal government to have an army argued that it would be expensive to maintain, tempt our leaders to go to war, and threaten the legitimate jurisdiction of the states. 

Against this view was George Washington who wrote that state militias composed of untrained civilians would not insure the safety and security of the nation against foreign enemies. “To place any dependence upon Militias is assuredly, as resting upon a broken staff.” In Washington’s judgment, military preparedness required a standing army. 

The solution as written in the Second Amendment was to have state militias as both alternative and counterweight to a national army. The militias would be under the Governors of the states and the national army under the President as Commander in Chief.   

The Second Amendment is thus primarily about the allocation of military power. Should the federal government have an army or should it rely on state militias? Clearly, some kind of federal army was needed – full-time professional military soldiers – but it was to be complemented, and even checked, by state militias composed of part-time citizen soldiers. 

When Patrick Henry, the Governor of Virginia and a strong supporter of states’ rights said, “The great object is, that every man be armed,” he did not mean this as a matter of individual liberty but in defense of the states against any federal threat or intrusion to their jurisdictions. His was the view that disbursed rather than centralized authority was most consistent with a government of checks and balances. 

In the end, democracy wanted a militia but national security demanded an army. The Second Amendment was designed to alleviate state concerns about an all-powerful federal government intruding on the rights of the states by having state militias complement a federal army. In this scenario, it was presumed that every citizen was a soldier who would fight in the state militia if summoned and called by the Governor of the state.   

However, this balance between federal and state power enshrined in the Second Amendment proved problematic. During the War of 1812, several governors refused to mobilize their state militias in support of the war against the British. Already there was tension between federal and state control of the military.

During the Civil War, the Second Amendment proved completely counterproductive to its original purpose. When the southern states seceded from the Union, the Governors of the secessionist states mobilized their state militias to fight against the federal army in what became a bloody Civil War that resulted in over 600,000 dead. As the war progressed with thousands dying on the battlefield and in field hospitals from their wounds, President Lincoln required more troops to serve in the army. Unable to recruit sufficient volunteers, Congress passed the Conscription Act of 1863 that initiated the first federal military draft. The federal army would now come from draftees and not state militias. In fact, there was now no need for state militias since the federal government assumed the responsibility of mobilizing its citizens for war. 

The 14th Amendment legitimized conscription because it affirmed that a “citizen” was a citizen of the United States and not of any particular state. The idea of having a firearm so one could be part of a state militia no longer made any sense – in fact, the Second Amendment itself was now made obsolete. Whatever the legitimate purpose in having a Second Amendment was now bypassed by the 14th Amendment in which all citizens were subject to the jurisdiction of the United States. 

The Future of the Second Amendment

Throughout the period from 1787 to 1866, the debate on the Second Amendment had nothing to do with the right of an individual to possess a firearm. The purpose was to maintain state militias as a supplement or complement to the federal army. That purpose collapsed during the Civil War with the Conscription Act of 1863 and the subsequent legitimizing of the draft with the 14th Amendment. 

Interestingly, there was never any court challenge to the federal draft until World War I. In the Selected Draft Law Cases 245 U.S. 366 (1918), the Supreme Court affirmed that the 14th Amendment legitimized conscription. Along with United States v. Miller in 1939, the Supreme Court completely gutted the Second Amendment into oblivion. 

And yet, the Second Amendment refused to die. Through a revisionist historical interpretation and the influence of the NRA, proponents now argue that the deadlier the firearm is, the more likely it is to be constitutionally protected. An AR-15, for example, may be a terrifying weapon that can inflict enormous damage and cost many lives, but they claim that banning such a weapon would infringe upon a protected Second Amendment right. 

I have argued, as did Professor Yassky, that there is no such right intended in the Second Amendment.  The Amendment was a matter of states’ rights, not individual autonomy. There is no “ordered liberty” to possess a firearm, only the common good to come to the defense of one’s state and country.   

Professor Yassky acknowledges (even before the mass shootings in the 21st century) that most of us reading the Second Amendment as support for a libertarian view of firearms would find the Founders’ view hopelessly anachronistic, and the modern tendency to regulate and even ban certain types of firearms intuitively correct. 

There is something inherently repulsive and deeply threatening about allowing almost any type of firearms to be possessed by almost any type of individuals with only a minimal if any background check. 

Three Alternatives

So how do we deal with the proliferation of guns in our society today? One answer, according to the NRA, is to respond to gun violence with more guns – in the hands of teachers, school guards and every law-abiding citizen in the United States. You meet the threat of guns with more guns – that’s the logic of the NRA and its supporters – and that logic is killing America.

If we apply the logic of the NRA to our schools, then each school would be transformed into a prison. Students and teachers would pass through metal detectors and armed guards would patrol the hallways on the look-out for would-be shooters who somehow managed to sneak on campus. Teachers with concealed hand guns would be prepared to “take down” any culprit. In a shoot-out, perhaps some innocent people would be shot and even killed in the crossfire, but that is the price to be paid for living in a gun culture – and the collateral damage that comes with it.   

This is a horrific scenario and it is startling that even some of our political leaders seem to be accepting of it. 

Another response is to work for reasonable gun control legislation that regulates the purchase and possession of firearms, and restricts the type of firearms that are allowed to be possessed by any civilian. Progress in this area is uneven and faces enormous resistance from diehard gun advocates, but perhaps recent tragedies have shocked the consciences of enough Americans to take meaningful action to restrict gun use and ban certain types of firearms. 

On November 27, 2017, the United States Supreme Court declined to hear challenges to gun restrictions in Florida and Maryland. The Court left in place decisions upholding an assault-weapons ban in Maryland and an open-carry ban in Florida. 

In the Maryland case of Kolbe v. Hogan, the 4th Circuit Court of Appeals left in place a ban on semi-automatic rifles and large capacity magazines. The Court stated that states could ban any weapon that is “most commonly used in military service.” 

In Norman v. Florida, the Florida Supreme Court upheld a state law that banned carrying guns that are not concealed. Dale Lee Norman challenged the law after he was arrested for walking on a sidewalk with a holstered handgun. Sadly, the case did nothing to prevent the recent school massacre in Parkland, Florida. And, in any case, it is hard to know which is worse – having a concealed weapon or one in open-carry.  

A third alternative – one that I espouse – is the outright repeal of the Second Amendment. Yes, I know the difficulty of repealing an Amendment to the Constitution, but it can be done because it has been done before when Congress and the States repealed Prohibition. The 18th Amendment in 1919 was repealed by the 21st Amendment in 1933 with one sentence: “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.” That same language could be used to repeal the Second Amendment. 

Once the Second Amendment is repealed, the ownership and possession of a firearm would go from being a “right” to a “privilege” – much like driving a car is not a right but a privilege. To drive a car, a person must meet the proper qualifications: pass written and road tests, have a background check, and be of the required age without any medical condition that would prevent one from driving. 

So, why not have the same procedure with a firearm? Why not license people to have a firearm just as we license people to drive cars? Just as you would need a specialized license to operate a commercial vehicle, so one would need a specialized license for certain types of firearms. And just as certain types of vehicles are not permitted to be driven by civilians – tanks, for example – so certain types of firearms – assault and rapid-fire weapons – would not be permitted for civilian use.  Cars can kill people, which is why we license and regulate drivers and vehicles. Shouldn’t we do the same with firearms? 

I believe the time has come in America to repeal the Second Amendment and treat owning a firearm as we would driving a car – moving from “right” to “privilege” and restricting the type of firearms that can be appropriately used in civilian life. This makes eminent sense, but with firearms good sense doesn’t always seem to matter.