Kurt Eichenwald: Let’s Repeal the Second Amendment
As news of the massacre at Sandy Hook Elementary played out around the country, the mantra from the gun-rights folks was fairly consistent: now is not the time to discuss how the government should deal with controls on firearms. It’s politicizing tragedy to talk about it, they whine.
O.K., I’ll agree. Let’s not talk about policy when it comes to Sandy Hook.
Instead, let’s consider the San Ysidro McDonald’s massacre in 1984. Following the shooting of 40 people at that time, gunnies also said it was too soon to discuss new firearms laws; it would politicize the shooting at a moment that should only be about remembrance, you see. So let’s do it now—28 years is long enough to wait.
Or we can talk about the 21 people shot at the post office in Edmond, Oklahoma, two years later. Or the 35 at Cleveland Elementary School in Stockton, California, in 1989. Or the 20 that same year at Standard Gravure. Or the 50 at Luby’s Cafeteria in Killeen, Texas, in 1991. Or the 14 at Lindhurst High School in Olivehurst, California, the year after that. Or the 25 on the Long Island Railroad in 1993. Or the 15 at Westside Middle School in Jonesboro, Arkansas. Or the 29 at Thurston High School.
Or Columbine. Or Virginia Tech. Or Tucson. Or Aurora. Or Clackamas Town Center, just three days before Sandy Hook.
Or any of the senseless mass murders that have left behind piles of the maimed and murdered—the elderly, students, children, shoppers, worshippers, moviegoers, diners, workers, and even a member of Congress. One young woman—Jessica Ghawi—missed a gun rampage while shopping at a mall by a matter of minutes, only to be killed weeks later at the Aurora movie-theater massacre. Almost 1,000 innocent Americans have been shot in the last 30 years in these bloodbaths. And at each instance, the National Rifle Association and company try to shame us with this “not the time” argument so that we can’t discuss adopting laws to protect ourselves; eventually, the horror recedes, we move on with our lives, and we walk out into the world never knowing whether our heads will be the next to explode after being struck by a madman’s bullet.
Enough. We talk now. And my position is going to be direct: America needs to repeal the Second Amendment.
Now, before gunnies run for their weapons and belch out that tiresome and frighteningly violent malarkey about prying their firearms from their “cold, dead hands,” let me be clear: I believe that people have the right to arm themselves. The concept traces back to English common law, which is how it made its way into the Constitution. The problem is, for a variety of reasons, the Second Amendment has been twisted and bastardized in ways that could never have been conceived at the time of the nation’s founding. Just look at what has happened in states so far: the Michigan legislature passed a law allowing folks to carry concealed weapons in day-care centers, and Ohio is going forward with its plans to allow guns in the garages at the state capitol. The right, they claim, comes from the Second Amendment.
As written, though, the amendment has nothing—nothing—to do with modern America. Worse, it is the biggest mess of verbiage in the whole Constitution, making its actual meaning almost impossible to discern. We need to get rid of it and try again with an amendment that makes sense.
On the Subject of Grammar
Let’s start with the words that now exist. As adopted by Congress, the amendment reads:
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.But is that really the amendment? Check out the version of the Bill of Rights held by the Library of Congress, and compare it with the Bill at the National Archives—they’re different. The one at the Archives was passed by Congress, while the other includes the words and punctuation ratified by the states and authenticated by Thomas Jefferson. It reads:
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.Still a grammarian’s nightmare. But notice that the comma between “militia” and “being” has disappeared. Rather than being a set of two syntactically nonsensical fragments, the version ratified by the states is much simpler: a dependent phrase, one that under the typical rules of grammar would qualify the independent clause that follows. In other words, just with the removal of the comma, the relationship between the words in the amendment becomes much clearer.
Unfortunately, the courts have tended to shrug off the difference in punctuation, instead attempting to define the amendment based on the grammatical train wreck passed by the Congress. So, how does the Supreme Court deal with the fact that the version of the amendment it relies upon is incomprehensible under any normal rules of grammar? It punts.
In the landmark case of District of Columbia v. Heller in 2008, Justice Antonin Scalia, in what may be a first from the Supreme Court, essentially ruled that the opening words of the Second Amendment could be ignored. They did not, he argued, qualify the independent clause that came after (as would have been obvious if the version of the amendment adopted by the states had been used). Rather, Scalia opined, the words were just a preface, a little bit of throat clearing by the framers before they got down to the business of defining gun rights.
In his ruling, Scalia calls the first half of the Second Amendment a “prefatory clause.” (To get a sense of how grammatically atypical that concept is, run those two words through Google. The vast majority of the entries are quoting Scalia.) The independent clause—about the right to bear arms—is the operative one, Scalia says.
“The former does not limit the latter grammatically, but rather announces a purpose,” Scalia writes. “The Amendment could be rephrased ‘Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.”
That’s right. To explain the meaning of the supposed prefatory clause of the Second Amendment, Scalia—who holds himself out as a strict textualist of the Constitution—felt the need to rewrite the Bill of Rights. And this incompetently written phrase does nothing to expand or limit the scope of the amendment, he says; essentially, the words have no purpose. Nowhere else in the Constitution does this supposed blaring of trumpets announcing the about-to-arrive relevant portion appear.
Even with Scalia’s tortured logic, though, the words “well regulated militia” and “free State” are too specific to be dismissed as something the nation’s founders just threw into the mix to be, I don’t know—dramatic? So what do they actually mean?
Well, that’s another problem. The term “well regulated” doesn’t denote today what it did then. It’s an archaic phrase that is the equivalent of “well trained.” And a militia is either an army made up of ordinary citizens rather than professional soldiers or a military force like the state National Guard that can be called up at any time.
Then, “free State.” Some gunnies seem to translate these words to mean “a free country,” as if it were a generic term. They’re wrong. The word “State”—capital S—appears throughout the Constitution, and it always refers to the individual states that make up the United States. At the time of the writing of the Constitution, each state had its own militia of citizens, and the fear was that a federal army would disarm them. In essence, since the states didn’t trust the federal government not to abuse its power, the Bill of Rights guaranteed that these militias would maintain the weaponry needed to defend themselves against encroachment by a federal army.
So, how does Scalia’s argument about the prefatory clause make any sense? Really, it doesn’t. Using the “because” that he added, let’s look at how the Second Amendment would be written using the modern terms and the structure ratified by the states:
Because a well-trained army of ordinary citizens is necessary for the security of the individual states that constitute the United States of America, the right of the people to bear arms shall not be infringed.
Now, the first half of the amendment starts to make sense. Not only does the supposed “prefatory clause” have meaning, it actually—as would be expected—serves to define the words that follow. Not in a way I think is appropriate; I don’t believe that only Americans who serve in state-sanctioned militias should have the rights to weapons.
So, Which People Should?
“The people.” That’s the simplest phrase in all of the Second Amendment, but even those two words can lead to mind-numbing debate about what in the world the Founding Fathers meant.
Scalia thinks he knows. Since he tosses out the “prefatory clause,” he doesn’t have to acknowledge that the framers were writing about militias. Instead, to get to his desired outcome, he once again creates a definitional netherworld that doesn’t stand up to the scrutiny. While ignoring the first half the Second Amendment, Scalia decides that he can use other parts of the Constitution to define the second half.
“In all six other provisions of the Constitution that mention ‘the people,’” Scalia writes, “the term unambiguously refers to all members of the political community, not an unspecified subset.”
Specifically, Scalia cites freedom of speech, protection against unreasonable search and seizure, protection of rights not enumerated in the Constitution, and the powers of the states. And all of those, he points out, apply to everyone.
Slow down, and let’s examine this closely. Let’s assume Scalia is right—which he isn’t. There are no subsets of people; all members of the political community have the right to bear arms. Just like all people have the right to speak, etc.
A week ago, I saw a man on a street corner who was clearly mentally ill, jabbering something irrational about the government. That man could not be stopped from speaking; like everyone else in this country, he is protected by the First Amendment. And if the police wanted to search the boxes the man was carrying, they couldn’t. He is also protected by the Fourth Amendment.
But if that same man walked into a gun shop, the owners could lose their dealer’s license if they sold him a weapon. Why? Because he is part of a subset of people whom voters and their representatives have decided do not have the right to guns.
It’s that simple. Scalia is wrong because Scalia is wrong. If all people, with no exceptions, have the right to bear arms, as Scalia maintains, then this mentally ill man could buy a handgun. So could a convicted felon. And so could my 18-year-old son. Hell, kids have freedom of speech and the right against illegal search—by Scalia’s logic, my 15-year-old should be able to waltz down to Walmart and pick up a nine millimeter.
But the problem with interpretations like Scalia’s—one long shared by the N.R.A.—is that what has long been widely accepted as reasonable exceptions to the category of “the people” can be tossed aside too easily.
Indeed, the N.R.A. has fought successfully to expand the meaning of those two words so that even those people who have been found to be a danger to others can get a gun. Yes, the gun-lobbying group has fought on behalf of gun rights for people diagnosed with mental illnesses. Second Amendment and all that, they chirped, as if James Madison fretted about arming the type of person often left to die in chains in colonial America.
After the Virginia Tech shooting—the deadliest in American history—Congress momentarily seemed to emerge from its gun stupor and passed the N.I.C.S. Improvement Amendments Act of 2007. When it was introduced, the legislation called on states to submit mental-health records to national databases maintained by the F.B.I., which would be paid for by the federal government. Sounds reasonable.
But no, the N.R.A. manned the barricades for the rights of those who can pose the most danger to the rest of us. This, they told legislators, was a matter of defending the Second Amendment.
So the N.R.A. started poking holes in the bill. First, the group succeeded in limiting the definition of those with mental illness to only people who had been tossed in a mental institution or found by a court or other official body to be a danger to themselves or others. Even if a psychiatrist reasonably believed a patient could pose a threat, nothing could be done to keep a gun out of that person’s hand. A medical diagnosis isn’t enough.
Once the definition was weakened, the N.R.A. went after the restrictions barring the mentally ill from possessing guns. In the past, anyone banned from having a gun would always be banned, a concept that makes sense given the frequency of relapse among the mentally ill. With the N.I.C.S. amendments, thanks to the N.R.A., that was no longer true.
The key to that was a program jammed into the legislation called “Relief from Disabilities,” which allows even people who have been institutionalized or deemed to be a danger to themselves or others to buy guns again. The way it works is this: sometime after meeting the law’s standards of being too mentally ill to own a gun, a person could petition a court, claiming to be all better. If the court agrees, well, lock and load.
After the N.R.A. wedged that rule into the books, the group then went to its ground game, making sure that the states that had to enforce this law didn’t bring too many mental-health experts or too much proof into the mix.
Take Idaho. After the new law was signed, a group of law-enforcement and mental-health officials—you know, experts—proposed that the courts should be required to have “clear and convincing” evidence before ruling that a person diagnosed with a psychiatric illness was allowed to buy guns again. On top of that, the group wanted what would seem to have been a requirement of the law—a recent mental-health evaluation of the petitioner. But the N.R.A. made sure that proposal died.
Instead, rather than experts, folks who know very little about mental health would be making the judgment call. The law passed in Idaho dropped the call for a psychiatric evaluation and set the standard of proof at the much lower “preponderance of evidence.”
A report in The New York Times last year summed up the results:
States have mostly entrusted these decisions to judges, who are often ill-equipped to conduct investigations from the bench. Many seemed willing to simply give petitioners the benefit of the doubt. The results often seem haphazard.Hearings could be no more than a few minutes long, the Times found. In one instance cited by the paper, a man who was barred from coming to the grounds of a local V.A. hospital out of fear he would hurt someone was allowed by a court to buy guns again. That could never have happened before the N.I.C.S. amendments. But at least a hearing was held. A number of states still don’t submit the psychiatric information to the N.I.C.S. system at all, meaning that the mentally ill are free in those locations to purchase a MAC-10 semi-automatic pistol or any other gun for sale.
So, while the politicians in Washington celebrated the passage of the amendments as a giant leap in preventing another Tucson, the N.R.A. told its members—presumably the mentally ill ones—the truth: their ability to buy guns had just gotten better, not worse.
After the House passed the N.R.A.-backed version of the bill, the gun group issued a message to its members with the headline “‘NICS Improvement Amendments Act’ Not Gun Control!” And for those who didn’t get the point, the body of the message was explicit.
“In several ways this bill is better for gun owners than current law,” the message read. “Rest assured that if the anti-gunners use this legislation as a vehicle to advance gun control restrictions, NRA will pull our support for the bill and vigorously oppose its passage!”
Rest assured, the N.R.A. got what it wanted. The term “the people” now includes the mentally ill.
Think about this for a second: Most of the mass murders of innocent civilians over the last three decades have been committed by people with guns that they lawfully obtained and owned. These rapid-fire, semi-automatic (and earlier, automatic) weapons with high-capacity magazines and speed loaders—guns that serve no purpose other than to hit the largest number of targets as quickly as possible—were purchased by these future killers as easily as they might buy a six-shooter.
Plenty of gun opponents have pointed out the obvious: that the Founding Fathers could never have envisioned the kinds of “arms” that exist today—Washington, Jefferson, and the rest had never even seen a bullet. Musket balls for guns that required constant reloading were the “arms” of the day. The modern bullet—a conical piece of metal in a tube that contained a propellant in its base—didn’t come along until the 19th century.
Concealed weapons? Largely impossible. A robber breaking into a house with a gun? Only one shot available before reloading required.
But that rational point leads some to the ridiculous notion that no arms should be available other than those that existed in the 18th century. The Constitution has to evolve with the times; no one would suggest that television stations and radio networks were not guaranteed freedom of speech under the First Amendment simply because they were means of communication unavailable in colonial times.
Let’s stick with that analogy for a second. Back in those days, I could stand on any street corner and argue for change to my fellow citizens (ignore, for now, the complexities created later by the obscene Alien and Sedition Acts). Today, though, I can’t just start a television or radio station. That’s because there is a limited broadcast bandwidth, and the government has an interest in making sure the airwaves do not become so cluttered that no one would be heard.
So, even though I have freedom of speech, I can be arrested if I decide to broadcast my speech on my own radio station without obtaining a license from the government. No reasonable person could contest that, even though such requirements mean that Congress has passed a law limiting an individual’s ability to speak to as many people as possible. If the absolutist arguments employed by the National Rifle Association were used here—let’s say by the National Speech Association—there is no doubt that broadcast licenses would be deemed unconstitutional by the group and its members.
What does this mean for the Second Amendment? The same thing. The evolution of weaponry—just like the evolution of means of communication—has created a state interest that didn’t exist before. When the Bill of Rights was written, no one owned a MAG5100, 100-round magazine for an M-16. The concept of a mass slaughter carried out over a matter of minutes was incomprehensible.
Just like with the state interest created by the need to preserve the broadcast bandwidth, the appearance of new technology in the area of guns has created a significant risk to other citizens that a government must take into account. Times change. Government has to change with it. The framers never intended to convey a right that gives any American the power to wipe out dozens of people in a matter of seconds.
As Supreme Court Justice Robert Jackson said in 1949, the Constitution is not a suicide pact. We do not all have to risk death at a movie theater or at a restaurant or at work because of a fealty to a bunch of words. And before the patrio-philic jump all over me, just know that Thomas Jefferson agrees. As he wrote in 1803:
Strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.The meaning of Jefferson’s comments, as I see it, is that the right of my family to live trumps some vague, tortured interpretation of a single garbled sentence that has been interpreted in ways that are contrary to the interests of many citizens. We need to fix it.
The question, of course, is how. Here’s my suggestion.
Because the Second Amendment is an incomprehensible mess, because too many lobbyists have argued that it is an absolute protection of actions and items never considered at the time of our nation’s founding, and because there is a clear state interest in protecting the lives of its citizens, the words must be removed from the Constitution.
But, and this is the important part, the right to bear arms must be preserved.
This is not a contradiction.
Once the Second Amendment is gone, a new amendment, one that takes account of the realities of modern times, should replace it. I think such an amendment should read something like this:
The people retain the right to keep and bear arms, subject to reasonable restrictions deemed necessary by the Congress and the President to secure the lives and well being of others.O.K., I’m no James Madison, but that makes the point. The courts, obviously, would have to rule on what is considered “reasonable”—an extremely open-ended word that would allow for the amendment to evolve if, say, someone in the next century invents a Glock that shoots missiles. I don’t, however, think that a case could be made arguing that the possession of cop-killer bullets is reasonable.
But here’s the restriction I really want to impose: force all gun owners to purchase liability insurance. That’s required for owning a car, despite the fact that such a rule could be deemed by the unreasonable as being an impediment to constitutional protections of interstate commerce. And, unlike government, the one thing insurance companies know how to do is assess risk.
You want a semi-automatic assault rifle? O.K., says the insurer. Where are you going to store it? Who else will have access to it? Your insurance won’t apply if someone else is firing it. Have you been trained? Do you have a license? You want another one—well, your rates just went up. And by the way—you have to notify us if you have been deemed to have any psychiatric problems, because we might cancel your policy. Then, just like with a car, people who want to carry around their gun have to have their insurance card on them at all times. And folks who have a gun without insurance? Well, that’s when the government steps in and deems it a felony.
These are just ideas, and there are plenty of others worthy of debate. But, unfortunately, so long as this “Second Amendment” mantra can be thrown into the gears to stop all reasonable conversation, a real discussion will never take place.
Some gun owners—some—will rage about this idea, saying that they have the right to protect themselves. Well, so do the rest of us—the right to protect ourselves from them.