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.