No need for the 2nd Amend­ment

Our Con­sti­tu­tion is get­ting in the way of our con­ver­sa­tion about guns. We can change that.

Los Angeles Times - - OP-ED - Ti­mothy Wil­liam Wa­ters isa pro­fes­sor at In­di­ana Univer­sity’s Mau­rer School of Law and the as­so­ci­ate di­rec­tor of the Cen­ter for Con­sti­tu­tional Democ­racy. By Ti­mothy Wil­liam Wa­ters

Fifty-eight dead, nearly 500 in­jured, but our na­tional de­bate will come through un­scathed. Like so many be­fore it, the mass shoot­ing in Las Ve­gas has re­solved into a set piece between gun-rights ad­vo­cates and gun-con­trol ad­vo­cates, yield­ing no fun­da­men­tal change. Bump stocks may get banned, but that’s as far as things will go, be­cause in Amer­ica, dis­cus­sion ends with the 2nd Amend­ment.

Worse, the 2nd Amend­ment ends dis­cus­sion. The other day, I heard an ex­pert close a de­bate by shout­ing, “Too bad, it’s in the Con­sti­tu­tion!” That re­ally is too bad, be­cause the Con­sti­tu­tion is get­ting in the way of the con­ver­sa­tion. There’s a lot to de­bate about guns and law. Do guns guard against tyranny? Do you sup­port back­ground checks? Do you like to hunt?

There are good rea­sons to limit guns, and to have them. But the 2nd Amend­ment isn’t one of those rea­sons.

Sen­si­ble peo­ple dis­agree about what the 2nd Amend­ment means. Per­haps it en­sures an in­di­vid­ual right, for­bid­ding re­stric­tions on “con­sti­tu­tional carry.” Per­haps it refers only to mili­tias, and there­fore au­tho­rizes reg­u­la­tion. But ev­ery­one agrees that the 2nd Amend­ment was an amend­ment — a change to the Con­sti­tu­tion.

Maybe tak­ing away guns would take away our free­doms, but talk­ing about it won’t. And the most im­por­tant guar­an­tee of our lib­erty is not the 2nd Amend­ment or even the 1st — it’s Ar­ti­cle V, which out­lines the pro­ce­dure for amend­ments. Ar­ti­cle V is what makes the Con­sti­tu­tion a liv­ing doc­u­ment, even for the most com­mit­ted orig­i­nal­ist.

I be­lieve the 2nd Amend­ment en­sures an in­di­vid­ual the right to bear arms. I also be­lieve the 18th Amend­ment banned al­co­hol and that the Con­sti­tu­tion orig­i­nally in­stalled the runner-up in pres­i­den­tial elec­tions as vice pres­i­dent and pro­tected my right to own slaves. As some­one who likes a cold beer, be­lieves peo­ple should be paid for work and doubts Hil­lary Clin­ton would have en­joyed be­ing Pres­i­dent Trump’s veep, I’m all in fa­vor of the 12th, 13th and 21st amend­ments. But I don’t be­lieve those things be­cause they’re amend­ments.

We don’t dis­re­spect the Con­sti­tu­tion when we change it — like when we added the 2nd Amend­ment, in 1791. We all want to live in a coun­try gov­erned by the rule of law, and that in­cludes de­cid­ing which laws rule. Rights are im­por­tant — and rigidly de­fined. Talk­ing about rights can make it harder to talk about what’s right. That’s dou­bly true for a Con­sti­tu­tion as sacral­ized as ours.

The 2nd Amend­ment makes gun-rights ad­vo­cates right­eous and in­tel­lec­tu­ally lazy; in­stead of ad­vanc­ing plau­si­ble ar­gu­ments about se­cu­rity, they too of­ten point to text. It makes gun-con­trol ad­vo­cates de­ploy awk­ward, hyp­o­crit­i­cal ar­gu­ments in or­der to fit them within the Con­sti­tu­tion’s lim­its. This leads to point­less de­bate about what is or isn’t a mili­tia, well-reg­u­lated or oth­er­wise, when the only sen­si­ble thing to say is: What­ever the Found­ing Fa­thers meant, things are dif­fer­ent to­day.

We don’t have mili­tias, but we do have semi-au­to­matic rif les and build­ings with 32 sto­ries. So what would you like to do?

As long as there’s a 2nd Amend­ment, any reg­u­la­tion is plau­si­bly sus­pect. We’ll be hag­gling over si­lencers, mag­a­zines, back­ground checks — “chip­ping away at the 2nd Amend­ment,” as Trump has put it. We’ll be quib­bling over ev­ery­thing ex­cept the heart of the is­sue, which is what to do about the 300 mil­lion guns in this coun­try.

Rights mat­ter, and pro­tect­ing rights car­ries costs. We need a real de­bate about our will­ing­ness to pay those costs. There is se­ri­ous dis­agree­ment about whether guns pro­tect lib­erty or threaten it — dis­agree­ment we don’t have when it comes to the value of vot­ing or free as­sem­bly. That alone is rea­son enough to re­con­sider the 2nd Amend­ment.

Our Con­sti­tu­tion is un­usu­ally dif­fi­cult to amend, but amend­ment is pos­si­ble. So it’s our re­spon­si­bil­ity to con­sider not just what the Con­sti­tu­tion says, but what it should say.

And on guns, what the Con­sti­tu­tion should say is noth­ing. The re­sult might be greater free­doms in some states, greater re­stric­tions in oth­ers. We could ban all guns, or not. If Amer­i­cans want to carry con­cealed pis­tols and long ri­fles in pub­lic — if they be­lieve guns pre­vent tyranny and save lives — they can de­mand their leg­is­la­tors keep the pub­lic square open. If Amer­i­cans want stricter back­ground checks, manda­tory stor­age, even pro­hi­bi­tion — if they be­lieve the 90 lives lost daily from sui­cides, mur­ders and ac­ci­dents are not worth what­ever else guns give us — they can de­mand that, too.

We don’t need an amend­ment pro­hibit­ing guns or pro­tect­ing them. We just need a 28th Amend­ment that re­peals the 2nd. The Con­sti­tu­tion should be silent, be­cause there’s a lot we need to talk about.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.