It’s Time to Repeal—and Replace—the Second Amendment

It’s Time to Repeal—and Replace—the Second Amendment

It’s Time to Repeal—and Replace—the Second Amendment

The meaning of the amendment has been so badly mangled that our only choice is to start over with something that allows for real gun control.

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Somewhere in West Virginia, or at a cocktail party of the New York Times editorial board, a conservative Democrat or “NeverTrump” Republican is looking at this article’s headline and thinking, “Oh no! Don’t say that. That’s exactly what the Trump people want you to say!” It has become an axiomatic feature of political gravity that we cannot have a frontal and honest conversation about the Second Amendment because it will whip ammo-sexuals into a frenzy and cause them to vote Republican.

“It’s a cultural issue,” we are told, repeatedly, by those who seem to think that enduring more mass shootings than anywhere else in the industrialized world is but one cultural choice among many. For some reason, the entire debate around the Second Amendment must be watered down so it doesn’t piss off the cultural sensibilities of those who want a constitutionally protected right to shoot wolves from a helicopter with a submachine gun—“like my grandpa did.”

Gun ownership is a cultural issue. Why you own a gun, while I own a security system, has a lot to do with how you were raised, the spooky rural environment you live in, and your tolerance for the possibility of your toddler accidentally shooting mine. But gun regulation is not a cultural issue; it’s a legal and political one. There are all sorts of cultural issues that we can still effectively legally regulate. Dog fighting is a cultural issue, and yet we have laws prohibiting dog fights. Spanking your child is a cultural issue, and yet we try to draw the line between corporal punishment and child abuse. But the thing that dog fighting and child abuse don’t have is the protection of a constitutional amendment.

The Second Amendment is why we can’t go to school, or work, or a house of worship, or a nightclub, or a movie theater, or a music festival, or pretty much any public gathering without fear of getting shot to death. The Second Amendment is why you can’t be immediately arrested for openly carrying around an assault rifle in a public place, and why you can’t be immediately arrested for smuggling a hand-cannon in your gym shorts. The Second Amendment is how law enforcement justifies the need for military-grade armaments—to match the “firepower” they meet in the streets. The Second Amendment is why we have a generation of young people that is scarred or missing from gun violence. And the Second Amendment is why I had to tell my 6-year-old last night to act like Scaredy Squirrel and “play dead” if an “active shooter” storms his classroom, thereby mangling the whole moral of the books.

In fairness to the Second Amendment, it wasn’t always this way. The right to lock and load, any time, any place, is not protected by the Second Amendment—it’s protected by the Republican interpretation of the Second Amendment. Textually, the amendment itself is almost toothless and easily amenable to regulation. Hell, “regulated” is written right into its 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.

See. You don’t have to be a constitutional scholar to conclude that this amendment is talking about the need for “militias,” not an individual’s right to own a bazooka; and you don’t have to be a historian to noodle out that the founding fathers—who revolted against a global superpower—thought that state militias were pretty cool.

In fact, this benign interpretation of the Second Amendment was the accepted constitutional view for nearly 200 years in this country. Ronald Reagan himself, racist and patron saint of the Republican Party, was all about gun control when he was Governor of California and black people were walking around with guns.

It was only in the 1970s that the National Rifle Association basically invented the new constitutional theory that the Second Amendment conferred a personal right to own military grade weapons for “self-defense.” It was only in the 1980s that the Republican Party figured out that harping on this new interpretation of the Second Amendment was a good way to keep rural white people voting for Republicans and against their own economic interests. And it was only in 2008, after years of slowly expanding the amendment’s reach, that the Supreme Court decided District of Columbia v. Heller—a case in which the allegedly “originalist” Antonin Scalia recognized for the first time in American history a constitutional right to own a gun for self-defense. It takes an originalist, I suppose, to invent an entirely new constitutional right out in front of your face and then pretend like it’s always been there.

And herein lies the problem: As long as this interpretation is the law of the land, effective gun regulation will be impossible. All serious efforts at gun regulation need to start from the premise that the government defines the parameters for “responsible” gun ownership, not the NRA, just like the state defines the parameters for responsible alcohol consumption, not Jose Cuervo.

That leads to only one logical conclusion: Repeal the Second Amendment and start over from presumption that you do not need a gun unless you are going off to war or going off to train for war.

You know who agrees that the Second Amendment should be repealed? The late Supreme Court Justice John Paul Stevens. Writing in 2018 about the Heller decision, Stevens said this:

Overturning [Heller] via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.

Stevens recognized that repealing the Second Amendment is actually easier than the alternative, which is fighting for small-bore legal changes against the combined strength of archconservative judges. Republican judges and justices have now put so many bad Second Amendment precedents on the books that it will take generations to decouple their bad theories from the relatively benign text of the amendment, if it can ever be done at all.

In fact, the current crop of conservative judges, the ones Donald Trump and Mitch McConnell have been flooding the courts with at a record pace, do not think Heller goes far enough. Republicans might tweet thoughts and prayers, but what they do is nominate archconservatives whose judicial opinions are the stuff of NRA wishes and fantasies. The truth of the problem with gun control legislation is that there are too many Republican judges out there with the will and authority to neuter effective regulation at every turn.

The existence of Republicans judges is just a stark reality we have to be willing to face: Repealing the Second Amendment is the only way to disarm these conservative judges and justices. Otherwise, we’ll have to wrest gun reform from their cold dead hands.

I don’t know about you, but I’m not willing to wait that long. I’m not willing to sit idly by while lifetime-appointed Republican judges frustrate reasonable efforts to stop mass shootings in America. I’m not willing to nibble at the margins, striving for an AR-15 ban when Remington will just start production on a Ray-Gun-66 the moment “Bushmasters” are restricted. I’m not willing to accept that you can buy a Glock and stalk your ex-girlfriend, just so long as you can prove that you haven’t murdered any of your other ex-girlfriends, yet.

Does this mean all guns will be banned, that hunters and sportsmen can’t continue to sit in trees covered in buck urine waiting for a defenseless animal to come into range of their rifle? Some of people might wish it were so, but it doesn’t have to be the case. If we repeal the Second Amendment, and reset the law to the principle that there is no constitutional right to be ready for the Purge, then it should be fairly easy for states to make carve outs that still allow people to hunt and feel manly by shooting something that can’t fight back. There’s no constitutional right for me to drive a car, and yet I drive all the time, subject to a number of licensing, registration, insurance, and safety requirements. Taking away constitutional protection is not the same as eliminating enjoyment of products that could easily kill us.

It will take overwhelming popular support to repeal the Second Amendment, but guess what, it takes overwhelming popular support to do anything about gun regulation. The utility of starting to muster that popular support against the Second Amendment is that, if successful, that support cannot be frustrated by Republican judges ensconced in our antidemocratic branch of government. If Republicans tell us it’s the Second Amendment that stands in the way of reasonable gun reform, then it’s the Second Amendment that we should be coming for.

The Republicans have turned the Second Amendment into a Golem. They’ve animated it, weaponized it, and unleashed it upon their enemies. It is killing children. It is time to hit this monstrosity in its clay feet.

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