It’s time to eliminate ‘slippery slope’
In a previous opinion, I argued that Republicans and their NRA sponsors should spend less time worshiping the Second Amendment and more time understanding it. Here, I hope to further that understanding: the “slippery slope” that gun advocates morbidly fear, as a reason not to consider even the smallest gun reforms, is inherent in the Second Amendment itself.
The answer is to adopt a new, clearer and ironclad Second Amendment, one that is slippery-proof. The new
Second Amendment would unequivocally guarantee gun rights, and would prescribe reasonable regulations to reduce gun violence, in a onestop document. The seem- ingly endless litigation and regulatory bickering and experimentation would soon end. Impossible, you say? Perhaps, but it is our only hope.
Although the NRA sells the myth that the current Second Amendment is crystal clear, that is not true — it is anything but. The NRA betrays its lack of confidence in its own myth by arguing, in the same breath, that any gun regulation would lead to ever stricter gun regulations, eventually leading to total bans on guns. (The metaphor is that once you put your toe into any regulation, you lose your footing and tumble onto a slippery slope to the hellfire of total ban.)
The slippery slope argument is valid. As the NRA and any student of the Second Amendment knows, the current Second Amendment is only as stable and predictable as the next judge interpreting it. A 27-word law that is “crystal clear” does not require thousands and thousands of pages of court opinions— hundreds at the United States Supreme Court level alone — interpreting it. I doubt that one in a million “gun advocates” has waded through this massive mountain of paper and circuit board of arguments.
In recent years, the Supreme Court’s gun rulings have pleased gun advocates, in that they have expanded gun rights. But, as I argued previously, for marketing purposes gun advocates invariably misstate the holdings and reasoning of these cases — they make them appear more “pro-gun” than they actually are. The simplistic and misleading phrases “pro-Second Amendment” or “anti-Second Amendment” mask the fact that even the most conservative justices in American history still spend scores of pages grappling with the history of the Second Amendment, its “true meaning,” how it admits or does not admit of various kinds of regulations, what constitutes “dangerous and unusual” weapons, and other highly complicated issues. The third word of the current Second Amendment is “regulated.”
A recent example of these struggles is the Supreme Court’s ruling last summer in New York State Rifle & Pistol Assn., Inc. v. Bruen, authored by Justice Clarence Thomas. I will not go into the details of the opinion — it is very complicated — but it overturned a New York law giving gun administrators discretion whether to grant concealed carry permits to qualified, law-abiding citizens. But Justices Kavanaugh and Roberts joined in a concurring opinion explaining the majority opinion (a fact telling in itself), emphasizing the majority opinion’s limitations—the most important being that the majority opinion does not prohibit many different categories of gun regulations, citing Justice Scalia’s landmark opinion in District of Columbia et al. v. Heller. Not surprisingly, the Bruen decision has already caused further litigation, including clear misreadings of Bruen that should end up back before the Supreme Court for correction and clarification.
The upshot: the Second Amendment is still not crystal clear, and courts change over time: witness the Dobbs decision on abortion. A strong rug pull is worse than a slippery slope. As gun advocates and their lawyers know, the slippery slope is still out there, and could get steeper as politics wax and wane, paralyzing even the smallest step toward fair, solid and reasonable gun rights and regulation. The slope itself is the bogeyman: let’s get rid of it.
The United States Internal Revenue Code and its regulations take up shelves of space. Is it asking too much to have a sensible and clear new “Second Amendment” that might extend to, say, 20-30, even 50 pages? Of course it isn’t.
Sure, the devil is in the details. And again, one might declare the idea stillborn. But again I say: it is our only hope. If impossible pipe dreams were never followed, the American Revolution would not have happened.
Certainty beats vagueness. A Constitutional amendment beats a federal or state statute. A new amendment would take decades for its effects to ripple into our gun-filled society. But we can — eventually — reduce the number of guns in the hands of insane people and violent criminals, if we start with a new, clear, slope-proof “Second Amendment” now. “Yeah, but...” is a lazy, lousy mantra when many Americans are scared to go to the grocery store, school, the dance club, work, outdoor concerts, a town parade, the church, mosque or synagogue, or the movies. To name but a few. Gunfights in these public places, with hundreds of armed citizens all shooting at once, are a Dirty Harry fantasy, not an adult solution.