December 23, 2012

Is It Time To Redo The Second Amendment?

by Hal Gershowitz

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Actually, we think it is.

Notice we said, “redo” not “repeal”.  Repeal of the second amendment isn’t feasible, sensible, nor would it be desirable.  Responsible men and women do and should have a right to protect themselves, their loved ones and their homes, from intruders or assailants (as well as to hunt, target shoot, and collect certain firearms).  But the right to bear arms for self-defense has very broad ramifications. The well-respected U.S. Seventh Circuit Court of Appeals, held, just last week, that states (Illinois specifically) can no longer prohibit their adult, law-abiding civilian populations from packing heat on their streets and public places.

The Court’s reasoning as expressed by Judge Richard Posner, one of the University of Chicago Law School’s leading (albeit controversial) intellectuals, rejected laws against carrying guns in public, declaring that “the constitutional right of armed self-defense is broader than the right to have a gun in one’s home.” The judge reasoned a man or women in Chicago “is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.”

We believe, however, that the original reasoning that led to the right to bear arms isn’t really any longer relevant.  The framers of the constitution were not motivated to assure that citizens could bear arms in order to ward off a mugger or to hunt game.   The framers’ primary concern was to assure the people they could arm themselves against a future American government turned rogue or tyrannical, and, by extension, to defend themselves in general.  Proponents of legislation to ban or regulate firearms engage in wishful thinking when they argue that the original right to bear arms was restricted to members of well-regulated militias, which, by and large, no longer exist, having been replaced by the Armed Services of the United States, including our state National Guards.  While the need for a well-regulated militia was the explanatory clause justifying the ”right to bear arms” it is, the right that is the operative language and is, at present, constitutionally inviolable.

While it is sometimes difficult to divine what the framers intended with any particular provision of the constitution, that isn’t true with respect to the second amendment. The driving motivation for the second amendment was to assure that the people could protect themselves against their own government were it to turn despotic or tyrannical.  Many of the great thinkers and patriots of the day weighed in. Noah Webster argued, “…The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.”

George Mason argued, “To disarm the people…(would be) the best and most effectual way to enslave them.”  Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe wrote, “the right to keep and bear arms” in a list of basic “human rights,” which, he proposed, should be added to the Constitution.

Patrick Henry, in the Virginia ratification convention June 5, 1788, eloquently argued for the dual rights to arms and resistance to oppression. He said, “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”

The most influential framer of the constitution, James Madison, often referred to as the father of the constitution, compared in Federalist No. 46, the federal government of the United States to the European kingdoms, which he contemptuously described as “afraid to trust the people with arms.” He assured his fellow citizens that they need never fear their government because of “the advantage of being armed….”.

Like it or not, that’s the thinking that informed our greatest minds as the second amendment was considered and finally codified into the sinews of the American body politic.  Gun control activists who constantly, and rhetorically, ask, “Who needs assault rifles or machine guns to hunt?” miss the point and render their case irrelevant.  The second amendment was never about hunting.  Subsequent history cannot negate the original history.  Only thoughtful and, perhaps, brave lawmakers can do that and, then, only with the overwhelming support and consent of the people through referendum (think constitutional amendment).  That could be a long slog, but we think it’s about time to begin slogging.

So where does this leave us?  First, we must remember that the ballot had not yet, in 1788, been demonstrated to be a plausible or an effective way to guarantee that, in America, governments would govern only with the consent of the governed.  America, during its relatively brief history has, through the ballot box, changed direction time and time again.  We have demonstrated that we can throw the rascals out whenever the people decide to throw them out.  We’ve never had to march them out with the arms we bear.

Furthermore, there is no longer parity between the arms available to a standing army and the civilian citizens of the country.  The day has long since passed when civilian militias and standing government armies would both, essentially, be equally armed only with rifles and side arms.  For a citizen militia to have parity with a standing armed force it would have to have automatic weapons, armored vehicles, artillery, missiles, aircraft, anti-aircraft, incendiary and explosive weapons, unmanned drones and who knows what else.  No sane person would, today, entertain such a thought.

So, perhaps the second amendment would be more relevant today were it re-amended with a 28th amendment to the constitution to guarantee the right of the people to own and use firearms for personal self defense as well as for the protection of home and property against criminal intruders, and for legal recreational sport and hunting.  Such a reorientation of our constitutional right to bear arms would allow for sensible regulation of firearms.

It is true, as second amendment advocates rightfully remind us, that assault weapons (semi-automatic rifles) are, relatively, rarely used in the commission of crime in the United States.  But it is also true (as we would remind them) that assault weapons (including semi-automatic pistols) have been the weapons of choice in 100% of the 29 massacres (assaults in which four or more people were victims) that have taken place in the United States since 1984.  We have reviewed each of these grotesque attacks and found that semi-automatic rifles or semi-automatic pistols (i.e. assault weapons) have been used in every such massacre, resulting in over 600 casualties, including 278 deaths.  That seems to us to be more than enough justification for rethinking our gun laws. At some point, enough is enough.

For example, the types of weapons to which the people would have a constitutional right could be rationally restricted (in addition to hunting) to that required to protect a home from intruders without being sufficient to mow down scores or hundreds of people in an open field a mile away (or innocent children in a classroom).

Today, any machine gun manufactured and registered prior to May 1986 can be purchased almost anywhere in the United States.  In fact, we counted 39 states that allow the private ownership of fully automatic machine guns to any non-felon 21 years of age or older.  Generally, the only requirement is that the weapon be registered with ATF.  That means anyone qualified to own a pistol, is qualified to own a machine gun.  It is estimated that there are about 120,000 machine guns owned by civilians in the United States.  While we acknowledge that (with but two exceptions); no legally owned machine guns have been used to commit a homicide in America during the past 70 years, we ask who in their right mind doesn’t dread the thought of a future, first-time machine gun massacre at some elementary school or shopping mall and wouldn’t want to take steps now to impede, if not stop, that future event from happening.

Mass shootings have occurred consistently throughout our history in every region of the country. These attacks have become increasingly more lethal as large capacity ammunition magazines (defined as more than 10-rounds) have become more available.  They enable an assailant to rapidly fire off as many as 100-rounds without having to reload the firearm. They are designed for military use in order to kill greater numbers of people more effectively. Large capacity ammunition magazines have facilitated some of the worst mass murders ever committed in the United States.

We will not presume to recommend solutions to the problems resulting from the ubiquitous presence of firearms in America.  We simply recognize that sensible gun control cannot any longer remain a third rail in American politics.   Mass murder has occurred in every region of the country and it is, therefore, the federal government’s responsibility to evolve uniform measures to protect Americans.  It seems rather ludicrous to us for politicians to continuously state that any Administration’s primary responsibility is to protect America from foreign aggressors, while insisting that the federal government should have a very limited role in protecting Americans from domestic aggressors.

We question the rationale that allows large capacity ammunition magazines designed for the armed services to be sold with only cursory regulation in the retail American marketplace.

Strict and timely gun registration requirements should follow a gun regardless of how many times the weapon may change owners.  There should be strict consequences for a prior owner of a gun if that gun is used in a crime when the prior owner had not reported the sale (or gift) within a statutory very brief period of time.

Gun control advocates and gun control opponents are active in both political parties in America.  While most of the money raised and contributed to politicians by the National Rifle Association generally goes to Republicans, we note that in the 110th Congress, then Representative Mark Kirk, Republican of Illinois,introduced a bill on June 12, 2008, to reinstate the assault weapons ban (that had expired) for ten years and expand the list of banned weapons. The Bill, H.R. 6257, the Assault Weapons Ban Reauthorization Act of 2008, had four co-sponsors, all Republicans: Michael N. Castle of Delaware,  Mike Ferguson of New Jersey, Ileana Ros-Lehtinen of Florida and Christopher Shays of Connecticut. The Bill never got out of committee and died at the end of the Democratically controlled 110th Congress.

If ever there was a time when Democrats and Republicans could work cooperatively to seriously address the problems that are a by-product of our gun culture, it is now.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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6 responses to “Is It Time To Redo The Second Amendment?”

  1. irwin yablans says:

    Bravo,one of the most concise and objective reviews of the gun problem that I have seen.
    I do think however, that you are hedging a bit when you “question” the need for large capacity magazines”There is no question about it…They have no place in civilian hands.
    Irwin Yablans

  2. Tom Crouse says:

    Excellent presentation ! I have wondered why this idea has not been the center piece of public discussion. Please use your influence to get this approach front & center in Congressional debate . All other approaches are just so many fingers in the dike.

  3. Robert J Goldberger says:

    I have read your notes on a weekly basis for the last few years. This is the first time I can say I can agree with you in totality knowing that in the past I have often disagreed with you in totality.

  4. Ellen Glass says:

    I agree with you totally as I have on your many other essays. However, in order to address these mass killings by people we deem to be mentally challenged, there is another avenue that needs changes. We must do something about the violent video games and movies displaying horrendous violence that influence distorted minds and give them ideas.

  5. Joyce Gruenberg says:

    Excellent..By far the best essay on the current gun, no automatic weapon debate I have read. You are at last, right on target..

  6. Mark J Levick says:

    Too bad that those on the political right distrust governmental regulation of anything and those on the left reject discussion of opposing points of view; as it makes common sense solutions to perplexing issues problematic. Our “gun culture” as it pertains to semi-automatic weapons is an unintended consequence of our culture of violence as an acceptable form of entertainment. I’m at a loss to understand how a society obsessed with political correctness is aggressively promoting consumption of violent video games, motion pictures and television programming. It’s a puzzlement that needs to be addressed simultaneously with the problems posed by semi-automatic weapons and the failure to recognize and treat potentially violent anti social behavior.

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