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Time to Amend the Second Amendment

Time to Amend the Second Amendment

Tuesday, 27 February 2018 11:47 AM Current | Bio | Archive

Nothing in the Constitution says that constitutional amendments cannot themselves be amended. The 21st Amendment, among other things, repealed the 18th Amendment's prohibition against alcoholic beverages. To prevent mass shootings like the recent ones in Florida, we need to amend the Second Amendment.

A tightly drafted replacement for the Second Amendment could specifically protect the right to own hunting rifles and ordinary pistols, subject to reasonable regulations, but not the right to own weapons, add-ons, or ammunition enabling one person to slaughter dozens of people wholesale in a few minutes. For brevity, I will refer to these latter things as "assault" weapons.

Amending the Constitution is usually harder than merely enacting laws. But here the opposite will be true. As things stand now meaningful legislation is impossible. But opposition to amending the amendment should be minimal since the changes would eliminate fears of legislation or court decisions banning pistols and hunting rifles.

People don't need assault weapons for protection or to hunt. But today's Second Amendment doesn't define what kind of arms people have the right to have. It simply says that "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."

Armament technology when it was written gave no reason to be more specific.

Technical progress now gives plenty of reasons to desire more specificity. But legislative attempts to draw a line between allowable and unallowable weapons degenerate into arguments about whether such legislation violates the Second Amendment. Legislators, claiming devout allegiance to the Second Amendment, have refused to act because they are intimidated, and to some extent bought off, by the National Rifle Association (NRA).

Since the wording of the Second Amendment gives no principled basis for courts to answer this question, courts must decide such cases on the basis of arbitrarily selected "legislative history" or some other fundamentally unprincipled basis.

In 2008, downplaying the expressions "well-regulated" and "militia"and reversing earlier precedents, the Supreme Court ruled 5-4 that the Amendment protects the rights of individuals to have guns. See District of Columbia v. Heller (554 U.S. 570).

But it has never decided whether the amendment protects the right to own assault weapons. The meaning of that amendment therefore remains up in the air and disputes about it can prevent Congress from considering legislation on its merits.

Discussions since the recent massacre in Florida sound all too familiar. The major difference this time has been widespread student demonstrations demanding action. These might lead to something, but we can't expect much beyond token reforms. We need a new way to approach the problem and amending the Second Amendment offers that opportunity.

Simply repealing the Second Amendment would allow gun legislation debates to focus entirely on benefits and costs. But repeal is impossible. People who want guns for self-defense or hunting would fear that repeal would "let the camel's nose into the tent." Such "slippery slope" arguments are not unreasonable. With no Second Amendment, what if legislatures banned all guns?

Still, many gun-owners and NRA members have now decided that banning assault weapons would be a good idea. While NRA gun rights absolutists would oppose amending the Second Amendment, more moderate members — hopefully the vast majority — could support this. This is why a constitutional amendment would be easier to get than mere legislation here.

An amended Second Amendment would keep the camel's nose out of the tent. It would allow proposals to ban assault weapons to be considered on the merits.

Amending the Second Amendment could not be dismissed as "anti-gun," since it would unequivocally protect the right to own pistols and hunting rifles.

Opponents of amending the amendment may argue that banning assault weapons would not reduce the number of mass shootings, but this argument is refuted by recent experience in Australia, the United Kingdom, and other countries. They might argue that we need better treatment for mental illness, which is true but irrelevant, since just as much mental illness exists in countries with far fewer mass atrocities.

The availability of assault weapons is obviously the critical variable here.

Opponents of amending the Second Amendment would have to argue that the benefits of privately owned assault weapons justify tolerating the mass atrocities they enable deranged individuals to inflict on shoppers, concertgoers, and students. But arguing cost-benefit rather than in terms of constitutional theology is exactly where discussions should have been all along, and few people will buy this argument when it is put so baldly.

The bottom line here is that tightening up the Second Amendment could be a win-win solution to a major problem which seems to get worse the longer we wait.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Opponents of amending the Second Amendment would have to argue that the benefits of privately owned assault weapons justify tolerating the mass atrocities they enable deranged individuals to inflict on shoppers, concert-goers, and students.
rifles, nra
Tuesday, 27 February 2018 11:47 AM
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