We need not "repeal" the Second Amendment, just return it to its original meaning. As originally understood (and until Heller), the Second Amendment did not create an individual right to keep and bear arms, only a militia right. Rather than belabor this point in an extended post, I am linking to the two amicus briefs in Heller that made this point best. Here is the Historian's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_historians.pdf). Here is the NAACP Legal Defense Fund's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_naacp_ldf.pdf). Disclosure: I helped proofread (but did not write any part of) the NAACP LDF brief.
Interesting note - Dale Ho (current nominee to the SDNY) was one of the authors of the NAACP LDF amicus brief.
The right to keep and hear arms is the second most important right in the Bill of Rights, right behind freedom of religion. Without the ability for citizens to defend themselves against tyranny, the rest of the rights are there in name only. Just look at Russia, North Korea, Iran, etc.
David, I think your statement about what a Republic needs and what rights are basic is very D.C. Lawyer-centric. Millions upon millions use their gun every day but do not publish or even speak on issues or go to church. I also think as crime rises to choose this very moment to tell people to trust the police alone--who have been demonized for 2 years, is ludicrous. I also think the idea that gun ownership is a relic of the 18th century is nonsense by Justice Stevens. But as usual you are 100% honest which is not the case with most opponents of the 2nd Amendment in my experience.
There was no constitutional right to individual gun ownership for 200 years until Heller. We are living in another one of those eras in which the Supreme Court has lost its mind (like when the first Justice Harlan was dissenting). We need a return to normal. Soon.
A most refreshing read. I very much agree with you. How about we start by making it easier to amend the constitution - it was not meant to be so sclerotic and ossified - and then revisit the second amendment?
Perhaps someone in this long (and very sincere) thread has already quoted Dave Chappelle’s take on the Second Amendment: “The First Amendment is first for a reason. Second Amendment is just in case the first one doesn’t work out.” Mr. Chappelle, with economy and clarity not often achieved by constitutional commentators, sets forth the very essence of why we have and must keep the Second Amendment.
The provision wasn't about "guns." It is structured to ensure the individual's liberty and to hold the slippery slope of potential federal tyranny at bay. No one just wakes up in the gulag.
The right to bear arms is the right that ensures the rest of the constitution remains in force and applicable. The right of the people to keep and bear arms in order to form a militia if needed. If the people cannot individually bear arms then how would a militia be formed? This would be trading one form of potential tyranny for another.
Yes, for a variety of reasons. If the imputed right to privacy is sufficient to establish the right to an abortion, then a right of armed self-defense does not seem an outrage. Years ago my wife and I lived in a rural area 12 miles from the nearest town of 15,000 (Hanover, NH). The village we lived in had no night police coverage. The state police and Hanover police provided mutual aid after hours. One weeknight at 2:30 am, four men tried to break into our home. My wife dialed 911. I went downstairs in the dark with a 12 gauge shotgun and a pistol. As the first man entered our doorway I turned on the lights and aimed the shotgun in his face. Unsurprisingly he and his friends left the doorway. Rather than leaving our property they began looking for other ways to gain entry. Fortunately after ten terrifying minutes the police arrived and arrested the four men at gun point. Ten minutes further on the state police arrived and transported the men to the county jail. Some of our friends were shocked by my behavior, suggesting the men were just out for a joy ride and looking for booze. A year later, two young men from VT entered a Hanover home owned by the Zantops, a Dartmouth faculty couple and murdered them in cold blood. The right of armed self defense is as important as any of the others in the bill of rights.
It is hard to argue for a full repeal. But there should definitely exist more limitations than what's currently imposed. As I write this, please note that these views are colored by my experience growing up in Venezuela under Chavez and Maduro.
The best way to answer your question is to ask ourselves what the raison d'etre for the amendment is; the point on which your third argument seems to focus. From the post, the comments below and much of the debate over the years, the locus for this amendment seems to be grassroots national defense (militias) and/or the threat of violent revolution in the face of tyranny being ever present in a tyrant-to-be's mind (deterrence). Let me throw the zombie apocalypse in to for the sake of popular culture justifications!
The first argument comparing rights seems more subjective than the other two (this is less important than that) and it could be subject to co-causalities. It could be argued that the other rights are not guaranteed without the ultimate threat of force in defense of them. This puts us back at deterrence (cf. your third argument). The second argument on Federalism does not convince me because it is bound to generate ample heterogeneity in gun laws among neighboring states. What could happen in the many cities that sit upon state borders? Isn't the whole point of the constitution and federal laws to bring an acceptable degree of homogeneity to what started as a confederation? Also, guns are a two equilibrium game in game theory: either everyone has them or nobody has them in order to get to a good outcome. Could the same be true at the level of state relationships? Not sure. We can't know counterfactuals and one should always be wary of assuming them.
As you argue, we do not know whether weaker gun laws would have led to more deaths in some cities. You also argue that "we have been able to address [problems] through the normal political processes" but we also don't know whether the political solutions would have been, on average, less successful over time without this deterrent. The counterfactual is, as all are, unknowable.
So, what do we know? That the most proffered reason for the 2nd amendment's existence is to protect the people from tyranny and to protect themselves. I'm amenable to this argument and I don't find it to be a relic. That it hasn't been necessary to use weapons in resolving political disputes in the U.S. for so many years could as easily be attributed to the existence of the amendment itself. One need only look at other nation-states to notice this reason is as old as humanity and just as fecund. On the individual protection front, it is highly unlikely that bad actors would turn their weapons in, which leaves the situation even more unbalanced.
But how much deterrence do we need for a potential tyrant? Could we really not do away with mentally unstable patriots-to-be? How about known criminals? Even in zombie-apocalypse shows these are the peeps that end up killing their fellow humans with guns! This is supposedly a system of "ordered liberties." Put some order.
I would be against it. I might even fight it using my guns if I thought there was any chance of victory.
A lot of people think the 2A should have been the first because the others depend upon it. It’s naive given history to trust governments even elected ones. It is also unrealistic to believe a popular uprising would also fail given our modern military. Louis 16th’s army was more than adequate if they were willing to wholesale slaughter their own citizens. Any army fighting it’s own people will fragment and often switch sides. Trusting them to do so without an armed citizenry is being too trusting.
I do appreciate that you admit truly ending the violence by cutting the supply of weapons is futile unless done so wholesale.
We have a sick culture and fixing that would help a lot. Red flag laws can’t hurt. Build an app for verifying anyone that wants to buy a gun anywhere.
A very rare breed of crazy has learned they can hurt us and get fame by killing what we treasure most. It’s often done by otherwise non-criminal citizenry so prevention is hard. For now I would fortify the schools and I would set expectations for those guards.
Sadly the police lingered for almost an hour outside in TX. I can’t imagine as a private citizen even if I had only a knife I wouldn’t go in and try to save those kids. Waiting for SWAT is not acceptable. The school was also negligent in securing their doors. We need inspectors to verify security. A lot can be done but the eradication of all guns is too far for me and anything else won’t work in the realm of gun control.
If you could wave a magic wand and disarm the civilian population of the US instantly, what would the result be? There would be far fewer random mass murders (Las Vegas, Sandy Hook, etc.) There would be far few murders committed by criminals and gang members. Yes, you can still kill people with knives and bombs, but that's harder, slower, and more dangerous for the perp. The US would be a much safer country in terms of personal safety. Hunters would have to learn to use bows and arrows. Recreational shooters would have to take up a different hobby. Militia members could go to law school if they needed some outlet for their antisocial leanings. Now of course this is a fantasy, because even if you could repeal the Second Amendment and outlaw private ownership of guns, the transition costs would be huge. By transition costs I mean the period of time it would take to disarm the population -- probably decades -- during which the criminals would all have guns and law abiding citizens would be defenseless. But it's a useful thought experiment nonetheless.
I would hypothetically support repealing the 2nd Amendment. Since the process for amending the Constitution makes that unlikely, however, what I would support would be continuing efforts to get the Supreme Court to modify its extremist interpretation of the 2nd Amendment, which in its current version treats the "well-ordered militia" language as inoperative and fails to recognize the necessity of allowing states to enact reasonable regulations as a matter of public safety. Agree with those who argue that states should at least be allowed to enact reasonable licensing schemes similar to what they do for driving motor vehicles, and should be able to set reasonable criteria for eligibility for a license.
Congress could go a long way by (1) reenacting the federal assault weapons ban or at the very least banning large-capacity magazines nationwide, (2) repealing the PLCAA so gunmakers have some incentive to be concerned about where their products end up and what they are used for, and (3) repealing/refusing to enact Tiahart amendments so researchers and policymakers can study gun-related data to determine what works and what doesn't when it comes to gun control. The Tiahrt amendments begin in 2003, the assault weapons ban was allowed to sunset in 2004, allowing gunmakers to begin mass-producing AR-15s and large-capacity magazines, and the PLCAA was passed in 2005, protecting gunmakers from liability for doing so, regardless of the consequences. (Then, of course, Heller came in 2008.) Obviously lots of factors at play, but compare mass shooting data before 2003 and since 2008 and draw your own conclusions. Oh wait, you want better data? Right...
I've always thought the answer to be, yes, clearly, for all the reasons you layout. People get overly attached to tradition and suffer from status quo bias.
That being said mass shootings dont actually kill many people, they just kill them in an "exciting" and particularly violent way that causes people to want to watch the aftermath on TV.
May 26, 2022·edited May 26, 2022Liked by David Lat
I wholeheartedly agree with you, and John Paul Stevens, that we should repeal the Second Amendment. Even in a world pre-Heller, where restrictions and regulations on gun ownership can be implemented on nearly any reasonable basis and are left to individual states to determine, the mere presence of the Second Amendment guarantees that the NRA, or anyone, really, willing to challenge gun restriction laws on the basis of constitutional rights, will file suit in order to return to a post-Heller world. In other words, given the history of the Second Amendment and personal gun ownership (Miller, Heller, etc) - it is up the Supreme Court, not legislatures, to determine if, who, and how guns are owned in this country.
There are arguments to be made on both sides of the Second Amendment debate, and that is the problem.
Personally, I think that nothing should change (i.e. no undue burdens should exist) for responsible gun owners in a Second Amendment-less world. In such a world, governments / the people will be free from the Second Amendment distraction that it has become, and free to enact common-sense regulations on guns, just as they regulate cars, planes, and whatever else makes life scary and/or dangerous in this big world.
Unfortunately, even though repealing the Second Amendment is what should happen (according to the few of us), it probably serves as a red herring to the bigger challenge of implementing middle-ground gun safety measures. Republicans and traditionalists will (rightly?) point the finger and say, "Look, they're really just trying to wreck our way of life and take away our constitutional rights - they deserve to get nothing." The debate will turn into an argument about the constitution, tradition, and other topics not relevant to major issue at hand: instituting gun safety measures to reduce gun violence. Full repeal, even if it is what should happen, is too big a bite to take right now, if ever.
We need not "repeal" the Second Amendment, just return it to its original meaning. As originally understood (and until Heller), the Second Amendment did not create an individual right to keep and bear arms, only a militia right. Rather than belabor this point in an extended post, I am linking to the two amicus briefs in Heller that made this point best. Here is the Historian's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_historians.pdf). Here is the NAACP Legal Defense Fund's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_naacp_ldf.pdf). Disclosure: I helped proofread (but did not write any part of) the NAACP LDF brief.
Interesting note - Dale Ho (current nominee to the SDNY) was one of the authors of the NAACP LDF amicus brief.
The right to keep and hear arms is the second most important right in the Bill of Rights, right behind freedom of religion. Without the ability for citizens to defend themselves against tyranny, the rest of the rights are there in name only. Just look at Russia, North Korea, Iran, etc.
David, I think your statement about what a Republic needs and what rights are basic is very D.C. Lawyer-centric. Millions upon millions use their gun every day but do not publish or even speak on issues or go to church. I also think as crime rises to choose this very moment to tell people to trust the police alone--who have been demonized for 2 years, is ludicrous. I also think the idea that gun ownership is a relic of the 18th century is nonsense by Justice Stevens. But as usual you are 100% honest which is not the case with most opponents of the 2nd Amendment in my experience.
There was no constitutional right to individual gun ownership for 200 years until Heller. We are living in another one of those eras in which the Supreme Court has lost its mind (like when the first Justice Harlan was dissenting). We need a return to normal. Soon.
A most refreshing read. I very much agree with you. How about we start by making it easier to amend the constitution - it was not meant to be so sclerotic and ossified - and then revisit the second amendment?
Perhaps someone in this long (and very sincere) thread has already quoted Dave Chappelle’s take on the Second Amendment: “The First Amendment is first for a reason. Second Amendment is just in case the first one doesn’t work out.” Mr. Chappelle, with economy and clarity not often achieved by constitutional commentators, sets forth the very essence of why we have and must keep the Second Amendment.
The provision wasn't about "guns." It is structured to ensure the individual's liberty and to hold the slippery slope of potential federal tyranny at bay. No one just wakes up in the gulag.
The right to bear arms is the right that ensures the rest of the constitution remains in force and applicable. The right of the people to keep and bear arms in order to form a militia if needed. If the people cannot individually bear arms then how would a militia be formed? This would be trading one form of potential tyranny for another.
Watch 2000Mules the movie.
Yes, for a variety of reasons. If the imputed right to privacy is sufficient to establish the right to an abortion, then a right of armed self-defense does not seem an outrage. Years ago my wife and I lived in a rural area 12 miles from the nearest town of 15,000 (Hanover, NH). The village we lived in had no night police coverage. The state police and Hanover police provided mutual aid after hours. One weeknight at 2:30 am, four men tried to break into our home. My wife dialed 911. I went downstairs in the dark with a 12 gauge shotgun and a pistol. As the first man entered our doorway I turned on the lights and aimed the shotgun in his face. Unsurprisingly he and his friends left the doorway. Rather than leaving our property they began looking for other ways to gain entry. Fortunately after ten terrifying minutes the police arrived and arrested the four men at gun point. Ten minutes further on the state police arrived and transported the men to the county jail. Some of our friends were shocked by my behavior, suggesting the men were just out for a joy ride and looking for booze. A year later, two young men from VT entered a Hanover home owned by the Zantops, a Dartmouth faculty couple and murdered them in cold blood. The right of armed self defense is as important as any of the others in the bill of rights.
It is hard to argue for a full repeal. But there should definitely exist more limitations than what's currently imposed. As I write this, please note that these views are colored by my experience growing up in Venezuela under Chavez and Maduro.
The best way to answer your question is to ask ourselves what the raison d'etre for the amendment is; the point on which your third argument seems to focus. From the post, the comments below and much of the debate over the years, the locus for this amendment seems to be grassroots national defense (militias) and/or the threat of violent revolution in the face of tyranny being ever present in a tyrant-to-be's mind (deterrence). Let me throw the zombie apocalypse in to for the sake of popular culture justifications!
The first argument comparing rights seems more subjective than the other two (this is less important than that) and it could be subject to co-causalities. It could be argued that the other rights are not guaranteed without the ultimate threat of force in defense of them. This puts us back at deterrence (cf. your third argument). The second argument on Federalism does not convince me because it is bound to generate ample heterogeneity in gun laws among neighboring states. What could happen in the many cities that sit upon state borders? Isn't the whole point of the constitution and federal laws to bring an acceptable degree of homogeneity to what started as a confederation? Also, guns are a two equilibrium game in game theory: either everyone has them or nobody has them in order to get to a good outcome. Could the same be true at the level of state relationships? Not sure. We can't know counterfactuals and one should always be wary of assuming them.
As you argue, we do not know whether weaker gun laws would have led to more deaths in some cities. You also argue that "we have been able to address [problems] through the normal political processes" but we also don't know whether the political solutions would have been, on average, less successful over time without this deterrent. The counterfactual is, as all are, unknowable.
So, what do we know? That the most proffered reason for the 2nd amendment's existence is to protect the people from tyranny and to protect themselves. I'm amenable to this argument and I don't find it to be a relic. That it hasn't been necessary to use weapons in resolving political disputes in the U.S. for so many years could as easily be attributed to the existence of the amendment itself. One need only look at other nation-states to notice this reason is as old as humanity and just as fecund. On the individual protection front, it is highly unlikely that bad actors would turn their weapons in, which leaves the situation even more unbalanced.
But how much deterrence do we need for a potential tyrant? Could we really not do away with mentally unstable patriots-to-be? How about known criminals? Even in zombie-apocalypse shows these are the peeps that end up killing their fellow humans with guns! This is supposedly a system of "ordered liberties." Put some order.
I would be against it. I might even fight it using my guns if I thought there was any chance of victory.
A lot of people think the 2A should have been the first because the others depend upon it. It’s naive given history to trust governments even elected ones. It is also unrealistic to believe a popular uprising would also fail given our modern military. Louis 16th’s army was more than adequate if they were willing to wholesale slaughter their own citizens. Any army fighting it’s own people will fragment and often switch sides. Trusting them to do so without an armed citizenry is being too trusting.
I do appreciate that you admit truly ending the violence by cutting the supply of weapons is futile unless done so wholesale.
We have a sick culture and fixing that would help a lot. Red flag laws can’t hurt. Build an app for verifying anyone that wants to buy a gun anywhere.
A very rare breed of crazy has learned they can hurt us and get fame by killing what we treasure most. It’s often done by otherwise non-criminal citizenry so prevention is hard. For now I would fortify the schools and I would set expectations for those guards.
Sadly the police lingered for almost an hour outside in TX. I can’t imagine as a private citizen even if I had only a knife I wouldn’t go in and try to save those kids. Waiting for SWAT is not acceptable. The school was also negligent in securing their doors. We need inspectors to verify security. A lot can be done but the eradication of all guns is too far for me and anything else won’t work in the realm of gun control.
So short run: fortify. Long run: fix the culture.
If you could wave a magic wand and disarm the civilian population of the US instantly, what would the result be? There would be far fewer random mass murders (Las Vegas, Sandy Hook, etc.) There would be far few murders committed by criminals and gang members. Yes, you can still kill people with knives and bombs, but that's harder, slower, and more dangerous for the perp. The US would be a much safer country in terms of personal safety. Hunters would have to learn to use bows and arrows. Recreational shooters would have to take up a different hobby. Militia members could go to law school if they needed some outlet for their antisocial leanings. Now of course this is a fantasy, because even if you could repeal the Second Amendment and outlaw private ownership of guns, the transition costs would be huge. By transition costs I mean the period of time it would take to disarm the population -- probably decades -- during which the criminals would all have guns and law abiding citizens would be defenseless. But it's a useful thought experiment nonetheless.
How about the quartering of troops in private residences?
I would hypothetically support repealing the 2nd Amendment. Since the process for amending the Constitution makes that unlikely, however, what I would support would be continuing efforts to get the Supreme Court to modify its extremist interpretation of the 2nd Amendment, which in its current version treats the "well-ordered militia" language as inoperative and fails to recognize the necessity of allowing states to enact reasonable regulations as a matter of public safety. Agree with those who argue that states should at least be allowed to enact reasonable licensing schemes similar to what they do for driving motor vehicles, and should be able to set reasonable criteria for eligibility for a license.
Congress could go a long way by (1) reenacting the federal assault weapons ban or at the very least banning large-capacity magazines nationwide, (2) repealing the PLCAA so gunmakers have some incentive to be concerned about where their products end up and what they are used for, and (3) repealing/refusing to enact Tiahart amendments so researchers and policymakers can study gun-related data to determine what works and what doesn't when it comes to gun control. The Tiahrt amendments begin in 2003, the assault weapons ban was allowed to sunset in 2004, allowing gunmakers to begin mass-producing AR-15s and large-capacity magazines, and the PLCAA was passed in 2005, protecting gunmakers from liability for doing so, regardless of the consequences. (Then, of course, Heller came in 2008.) Obviously lots of factors at play, but compare mass shooting data before 2003 and since 2008 and draw your own conclusions. Oh wait, you want better data? Right...
I've always thought the answer to be, yes, clearly, for all the reasons you layout. People get overly attached to tradition and suffer from status quo bias.
That being said mass shootings dont actually kill many people, they just kill them in an "exciting" and particularly violent way that causes people to want to watch the aftermath on TV.
I wholeheartedly agree with you, and John Paul Stevens, that we should repeal the Second Amendment. Even in a world pre-Heller, where restrictions and regulations on gun ownership can be implemented on nearly any reasonable basis and are left to individual states to determine, the mere presence of the Second Amendment guarantees that the NRA, or anyone, really, willing to challenge gun restriction laws on the basis of constitutional rights, will file suit in order to return to a post-Heller world. In other words, given the history of the Second Amendment and personal gun ownership (Miller, Heller, etc) - it is up the Supreme Court, not legislatures, to determine if, who, and how guns are owned in this country.
There are arguments to be made on both sides of the Second Amendment debate, and that is the problem.
Personally, I think that nothing should change (i.e. no undue burdens should exist) for responsible gun owners in a Second Amendment-less world. In such a world, governments / the people will be free from the Second Amendment distraction that it has become, and free to enact common-sense regulations on guns, just as they regulate cars, planes, and whatever else makes life scary and/or dangerous in this big world.
Unfortunately, even though repealing the Second Amendment is what should happen (according to the few of us), it probably serves as a red herring to the bigger challenge of implementing middle-ground gun safety measures. Republicans and traditionalists will (rightly?) point the finger and say, "Look, they're really just trying to wreck our way of life and take away our constitutional rights - they deserve to get nothing." The debate will turn into an argument about the constitution, tradition, and other topics not relevant to major issue at hand: instituting gun safety measures to reduce gun violence. Full repeal, even if it is what should happen, is too big a bite to take right now, if ever.