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Those who follow the Supreme Court have been buzzing with anticipation since the justices announced that this term's docket would include DC vs. Heller, a case that will determine the constitutionality of our capital district's handgun ban. The SCOTUS blog has a good summary of the two positions being argued in the case, as well as the implications it has for other laws that restrict gun ownership. The hearing won't happen until March, but that hasn't stopped people on both sides of the argument from setting their propaganda machines to HIGH and doing everything short of calling the justices at home.
But despite all of the excitement over the Court's decision to tackle this controversial issue, the fact is that the ruling in Heller will not have the conclusive, clarifying effect that everyone is looking for. Because D.C. is a federal entity, the ruling will only affect the federal government's ability to limit gun ownership - it doesn't say anything about state or municipal legislatures, which is where most of the controversial gun laws are authored. At best, the ruling in Heller will inspire new appeals focused on state laws, but it will not have a direct effect on those laws.
I know it's hard for those at the center of the Second Amendment debate to do so, but I wish we could just admit that this case is not as groundbreaking as it has been portrayed and start talking about the real cause of this conflict, which is the irrelevance of gun laws written in 1789. No matter which side you're on, I think it's safe to admit that the Second Amendment suffers from limited imagination and poor grammar. Here is the text:
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.Ignoring the awkward and unnecessary comma after Arms, this sentence has two reasonable but opposing interpretations:
- All individuals should be able to own guns in order to protect themselves and participate in government-sponsored militias. The weapons may be used for national defense, self-protection against criminals, or revolution against the government. Since threats against the individual exist today, this right is still valid.
- All individuals should be able to own guns in order to participate in government-sponsored militias. These militias were not wealthy or well-organized enough to provide soliders with weapons, and allowing citizens to own guns ensured that they would be equipped to fight when called upon. Because our country now has a very wealthy and powerful military, this right is no longer valid.
If the Second Amendment were stricken from the Constitution tomorrow, the Tenth Amendment ensures that we would be in a similar situation to the one we face now: state laws would govern who could own what kinds of guns. The only new possibility would be for a state to ban private guns all together; since the people doing the banning are subject to popular elections, I think it is unlikely that more than a few states would go through with a full ban. There is enough diversity of opinion in most states to prevent politicians who favor gun restrictions from going "too far". States like Oregon and Connecticut will probably ban guns immediately, but so what? You can still go to Kentucky and pick up a handgun and a carton of milk in the same trip. Right-leaning folks have proposed this same solution in the debate over Roe vs. Wade, and I don't think gun ownership is any less significant.
That said, I don't think that anyone who is invested in this debate could ever process the idea of repealing the Second Amendment as rationally as I have written it, so here is an alternative idea: nullify the Second Amendment by writing a new amendment. This is the same idea used by the authors of the Twenty-first Amendment, which made obsolete the alcohol prohibition of the Eighteenth Amendment. The new amendent could spell out the nation's policy on individual gun ownership, taking into account all of the technological and social advances that have occurred in the last two hundred and eighteen years. It could also respect the rules for using commas.
It's unlikely that George Mason could have imagined the kinds of weapons that humans would build in the years after the Constitution was ratified, nor could he imagine a world where a a miltiary superpower did not have to draft its male citizens. Even if you are a card-carrying member of the NRA, I don't think you could dispute that the Second Amendment does not take these things into account. It is incredibly naive about the role of guns in society. We simply cannot know what would have been written had Mason known that, in 2007, individuals would have access to weapons that kill dozens of people per minute, or that a rifle is no longer an adequate tool for revolution. Rather than waste time debating poorly-worded text written two centuries ago, we should amend the Constitution to clarify exactly what the country wants.
Proposing this new amendment would generate endless hype and debate, and getting Congress to agree on the exact text would be a monumental task. But hey, that's why they make the big bucks. This is a hard problem, and it's pretty clear that the original guidance given to us in the Second Amendment is not working. There shouldn't be this much controversy over one sentence. The right to keep and bear arms shouldn't hinge on a prepositional phrase that sounds more like musing than declaration. If we want to settle the debate and the majority is not willing to take the easy route (repealing the Second Amendment and delegating to the states per the Tenth Amendment), then a clarifying amendment is a must. Everything else is a waste of oxygen.
Labels: culture, law, narcissism
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