Is It Time to Scrap the Second Amendment?

Earlier this month I wrote about the controversy stirred up among gun owners when a writer for the special interest magazine Guns & Ammo suggested some gun controls are not "infringements" on the right to keep and bear arms (RKBA). Most surprising to me was that a longtime gun writer seemed to have a basic misunderstanding of the meaning of the term "well regulated" as used in the text of the Second Amendment.

The following week a law professor from Texas A&M University, Mary Margaret Penrose, spoke as a member of a panel at a symposium held at the law school of the University of Connecticut.  Penrose advocated ditching the Second Amendment, as part of a broader call for a constitutional convention to draft a comprehensive revision of the U.S. Constitution.  Penrose believes many things in the Constitution, written more than two centuries ago, inadequately address the issues facing modern society.  Although we have judicial interpretation to apply its provisions to current legal questions, and the document itself provides a mechanism for amendment, Penrose prefers a wider approach.

Penrose at UConn

Specifically regarding the Second Amendment, Penrose said the Framers included it in the Bill of Rights because of 18th-Century aversion to standing armies.  The idea was that standing armies enabled oppression of a people by their rulers, and it was preferable to avoid having them.  The alternative was that all of the citizenry be armed - or at least able bodied adult males, who - as a group - would make up a sort of "unorganized" militia (as distinguished from various state militias, which were "organized").

Now, of course, we have grown accustomed to having "standing armies."  The United States has quite a large number of uniformed personnel in organized forces, full time, around the globe.  So we obviously do not need an armed citizenry: it is no longer, in the words of the Second Amendment, "necessary to the security of a free state" that all able bodied citizens have privately owned firearms and be practiced in their use.

Gun rights advocates would point out that an armed citizenry may not be essential for national security, as we have delegated responsibility for that to the national government, but the other broad societal purpose of an armed citizenry in the minds of the framers was as a "bulwark against tyranny" by our own government.  The idea was that our central government wouldn't get "too big for its britches" and be tempted to oppress the populace if the people were armed and clearly intolerant of an oppressive regime.

Do we still need an armed citizenry to restrain our own government, lest it become oppressive and exhibit too little regard for the people's civil liberties?  We could talk about that at great length, but chances are those who say yes would be labeled paranoid, while those on the other side of the argument would be called naive.

But we're missing a very important point.  The Framers wrote the Second Amendment to restrain the central government, and so their writings are focused on the relationship between the government and the people.  The government, they wrote, must not infringe upon this right that existed to guarantee the people's ability to resist tyranny.  The Framers didn't write about hunting for sustenance or armed self defense against criminal attack.  The importance of gun ownership for those purposes was so universally understood that it did not require exposition. Furthermore, that aspect of gun ownership was not connected, in the minds of the Framers, with the relationship between the government and the people, and the right to use guns for those purposes was not thought of as a political right.

Penrose suggests we should drop the Second Amendment and leave it up to the states to regulate the ownership and use of firearms as they see fit.

Coincidentally, the Fall 2013 issue of Tufts Magazine (obviously New England is a hotbed of intellectual curiosity) includes a fascinating article about how the United States can be divided into eleven regions, with marked differences in attitudes about things like gun rights, gun control, and violence as a social problem - and the proper solutions to that problem.

Tufts Magazine: Eleven Nations

The thesis that there are stark regional differences in people's beliefs about such things dovetails rather nicely with the contention by Penrose that we should leave gun rights up to the states.

There is, however, an obvious flaw in this reasoning.  While there may be dramatic differences in people's tolerance for, or willingness to accept, stringent controls on the private ownership of firearms from state to state, these differences are seen on a societal level and cannot be assumed to reflect the beliefs or desires of individuals.  Penrose seems to think if we leave gun rights up to the states, people can just sort themselves out.  If I live in Massachusetts, where gun rights are little respected and gun controls are strict, I can just move to Arkansas.  On the other hand, if I live in Vermont and am appalled that one may carry a concealed handgun without a permit, I can just move to our nation's capital, where there are no such permits issued to ordinary citizens, or to one of the states where permits are extremely difficult to obtain.

Of course she believes the enlightened folks who live in states with strict controls will need help from the federal government to keep them safe from illegal trafficking across state lines.  As you may know, New York City Mayor Michael Bloomberg is convinced that gun crime would disappear from the Big Apple if he could just shut off the flow of guns from Virginia.

I consider myself fortunate to live in a state (Pennsylvania) with a modest regimen of controls.  If I want to buy a handgun, all I need is money to pay the asking price and a clean record, so when the dealer queries the National Instant Check System, the sale will be approved.  To get a permit to carry a concealed handgun, I must do some paperwork, pay a reasonable fee, and have a clean record and character references willing to vouch for me.  But if I lived in any of a number of other states, it would be much more difficult, at least in some locales. Try getting a permit in New York City or most counties in California.

And so the question arises whether my right to keep and bear arms should depend on my zip code.  If one views RKBA as a political right, then the answer is yes.  We make political decisions about political rights.  From the time of our nation's origin, we have restricted the right to vote.  Early on it belonged only to adult males, and only to whites.  We have repeatedly expanded suffrage, to include all races, then to include women, and then to include everyone at least 18 years of age.  But the right to vote is a political right, and so we have made political decisions, as an electorate, about how broad that right should be.

Gun ownership is different.  We live in a time and a set of social circumstances in which the gun is widely considered to be an essential implement of self defense. Certainly other options exist, including training in martial arts and the use of other weapons of varying lethality.  But for most people effective self defense is available mainly through personal ownership of a gun and the achievement of proficiency in its use.  Many advocates of strict gun control (or even outright bans) deny that this is so, insisting that gun ownership makes people less, rather than more, safe and secure.  But I have read the published literature on this at great length, and it has convinced me that the intended victim of a criminal assault is considerably less likely to be injured or killed if armed than if not.

Effective self defense is a fundamental or natural right.  In political philosophy and jurisprudence, these are terms of art with carefully elucidated meanings.  But suffice it to say that fundamental, natural human rights exist independent of political constructs.  We may guarantee them against infringement by governments in our constitutions, but such rights would exist even without those guarantees.

If you accept that characterization of the right to effective self defense, and you accept that in modern society effective self defense is most readily, and realistically, available through personal ownership of guns, then it becomes clear that it makes no sense for restrictions on RKBA to vary from one political jurisdiction to another.

That answers the question of whether the Second Amendment should be deleted from our constitution because we no longer need it or because it is more appropriate for the states to be given free reign to determine gun rights.

[You may have noticed that, as a general rule, people to the left of center on the political spectrum are unfriendly to gun rights and quite friendly to abortion rights. They staunchly oppose giving the states free reign over the latter but are quite content to have the states that wish to restrict gun rights do just that, and the more the better.]

No, the Second Amendment should stay put.  And the question of what sort of regulation of private ownership of firearms it permits should be decided by that arbiter of what the United States Constitution allows: the Supreme Court.  There is no guarantee that the Supreme Court will always respect the fundamental, natural right of armed self defense and strike down laws that unduly restrict RKBA.  But I am inclined toward greater confidence in the high court than in 50 state legislatures.

A Well-Regulated Militia

One of the stories on CNN this morning was about the resignation of the editor of the special interest magazine Guns & Ammo.  For some years I subscribed to that publication, but life is so full of demands on my time that all of my magazine subscriptions have long since lapsed.  Most of my non-medical reading is in the realm of history, especially American political history.

The CNN story caught my eye because a highlight blurb ran across the bottom of my TV screen while I was eating breakfast.  I don't expect to see "Guns & Ammo" in that news ticker.  So I had to investigate what the fuss was all about.

The magazine's editor, Jim Bequette, who was soon to retire from his position anyway, resigned after a column by longtime gun writer Dick Metcalf generated an impressive volume of negative feedback from readers.  Metcalf's column was titled, "Let's Talk Limits: Do certain firearms regulations really constitute infringement?"  Bequette thought Metcalf's opinion piece "would generate a healthy exchange of ideas on gun rights."

It certainly generated an exchange of ideas.  Gun rights and regulations have long been a subject of intense controversy, at least since the 1960s, when the federal government enacted a sweeping new law after the assassinations of Bobby Kennedy and Martin Luther King, Jr.  In the years that followed, the National Rifle Association became, in large measure, an advocacy organization with a single-minded focus on opposing new gun laws.  Other organizations were formed in response to the perception that the NRA was not sufficiently committed to the fight: Gun Owners of America and the Citizens' Committee for the Right to Keep and Bear Arms among them.  The view that the NRA was too willing to compromise was personified in Neal Knox, a leader in the NRA who went off to start his own hard-line group, The Firearms Coalition, in the early '80s.

The readers of Guns & Ammo were so offended by Metcalf's column that Bequette terminated the relationship between the magazine and Metcalf and then promptly resigned his position as editor, accelerating the timetable of his departure, which had been scheduled for the end of the calendar year.  Bequette penned an apology to readers, saying he made a mistake in publishing the column.

I read the column, and a sample of the comments posted on many media Websites in response.  No surprises: gun rights advocates slammed Metcalf's opinion, while others, claiming to be gun owners but not "gun nuts," said Metcalf's view was eminently reasonable.

The essence of Metcalf's perspective is that some regulation makes sense.  It's hard to argue with that, and courts (including the U.S. Supreme Court) have repeatedly held that some regulation of guns is consistent with the Second Amendment to the Constitution's proscription on infringement of the right to keep and bear arms.

As always, the devil is in the details of proposed regulations, and I will come to that shortly.  But I was perplexed by Metcalf's misapprehension of the language of the Second Amendment.  It is quite common, but not something I would expect from someone who has written about guns for decades.

Metcalf quoted the Second Amendment:

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.

He then proceeded to focus on the words "well regulated" as justification for government regulation of firearms.  What came immediately to mind was the Internet meme originating from the 1987 movie "The Princess Bride."  It is so well suited to pointing out when people are misusing the language: "You keep using that word.  I do not think it means what you think it means."

The meaning of the word "regulated" seems straightforward, but the Framers of the Constitution were not writing about government regulations (which didn't exist in those days).  The reference to a "well regulated militia" meant that a militia, in order to be an effective fighting force, should have requisite supplies (including guns) and should regularly assemble and drill.  The inclusion of this clause in the Amendment was intended to demonstrate the importance of private ownership of, and proficiency with, firearms, which members of the militia typically provided themselves.  The "militia" as the term was used in this context, meant essentially all able-bodied adult males.  Furthermore, this introductory clause was illustrative of a key reason for prohibiting infringement of the right: that an armed citizenry was essential to the common defense and to maintaining liberty.  It was not intended to mean that the right was limited to members of some organized militia (such as the National Guard).

I could not help being surprised that someone well versed in matters related to firearms would base his argument, at least in part, on a misinterpretation of the language of the Second Amendment.  Advocates of gun control do this all the time, and I always wonder whether they do so knowingly or not, but for a gun writer to make this error in a gun magazine seemed quite odd.

Linguistics aside, though, we certainly do regulate guns, and there is overwhelming consensus on particular points, such as prohibiting violent criminals and the dangerously mentally ill from acquiring firearms.

Metcalf pointed to the example of his native Illinois, which only recently ceased being the only state that does not allow concealed carry of handguns.  The change in Illinois was even more pronounced than that suggests, because there are other states in which carry permits are available but are rarely issued except to VIPs.  Now, Illinois is a "shall issue" state, while others remain categorized as having "severely restrictive, may issue" laws and practices.

The new law in Illinois requires 16 hours of training for an applicant to be issued a permit.  What could be wrong with that?

The answer to that question lies in the fundamental premise that regulations can be used to infringe upon a right.  Metcalf's subtitle asks whether regulations constitute infringements.  The answer, as is so often the case, is, it depends. Suppose a state legislature decides to require that gun owners, or those issued carry permits, provide proof that they have liability insurance.  If such insurance were very expensive (think malpractice insurance for doctors), the average gun owner couldn't afford it, and it would thus constitute infringement.

What about this requirement for training?  Sixteen hours doesn't seem like a lot. Suppose, instead, it was 40 hours.  Would that be too much?  What if the legislature decided the only training that would be accepted would be a course held at one of the campuses in the state college system, and the course was two hours a night, two nights a week, for a 16-week semester (total 64 hours)?  And suppose the tuition for the course was $1,000.  And suppose further that the course could be cancelled, at any of the campuses, if the number of students who signed up for it was too small.

I like the idea that people who are issued concealed carry permits should be required to achieve and maintain proficiency with a firearm and that they know something about the legal and ethical principles governing the use of lethal force in self defense.  But it is easy to see how writing such requirements into law is difficult to do while assuring that compliance is not so burdensome as to amount to infringement of a right guaranteed against infringement by the U.S. Constitution.

I live in a "shall issue" state (Pennsylvania) with minimal requirements.  Fill out an application, list two character references, and pay a fee (which covers the cost of doing a background check to make sure the applicant has a clean record).  No training requirement, no marksmanship test.  Is that good?  I admit to some ambivalence.  There are several states (Alaska, Arizona, Arkansas, Vermont, and Wyoming) that do not require a permit for concealed carry.  The rationale is that no permit should be required to exercise a constitutional right.

In discussions of these issues, people often draw an analogy with driving a car, which requires passing a test to get a license.  Typically the test involves answering questions about traffic laws and demonstrating one's ability to operate a motor vehicle.  When I took the test at the age of 16, I had had less than an hour of practice and thought the test was ridiculously easy.  Was it better than nothing?  I suppose so.  Is the analogy a good one?  Well, both cars and guns can be lethal weapons.  There is no constitutional right to operate a motor vehicle on a public thoroughfare.  Of course there were no motor vehicles in the late 18th Century, and firearms were firmly connected, in the minds of the Framers, with fundamental liberty interests.  So the analogy is imperfect.  Perhaps, given the unique role of guns in human societies, there is no perfect analogy, or even a very good one.

At the most basic level, the problem is the perception of the "slippery slope," as I described it in a March, 2012 essay for this blog:

http://bobsolomon.blogspot.com/2012/03/gun-control-and-slippery-slope.html

Advocates for gun rights see every regulation, every requirement, as holding the potential for undue, unwarranted restriction, which then amounts to infringement. Any requirement that might not seem, at first blush, to be an infringement, will surely lead to a more restrictive one that will infringe.

The slippery slope problem is based on a fundamental mistrust between advocates for gun rights and advocates for gun control.  Until we figure out a way around that, we will be fighting an uphill battle to get to civil discourse, and writers like Metcalf who are "just trying to be reasonable" will be pilloried as traitors.