THE TIME HAS COME

Jerry Harkins

…to repeal the Second Amendment to the U.S. Constitution and replace it with the Twenty-eighth, to wit:

           1.  The second article of amendment to the Constitution of the United States is hereby
           repealed.

2.  Nothing contained in this Constitution shall be interpreted to restrict the right of the federal government and the duly constituted governments of the several states to regulate the manufacture, sale, purchase, bearing or use of arms of any description.  Congress shall have the power to regulate the transportation and sale of such arms in interstate commerce.

3.  Nothing contained in this Constitution shall be interpreted to restrict the right of the federal government and the duly constituted governments of the several states to raise and maintain armed forces or armed law enforcement agencies.

Please note the proposed amendment does not actually require anything or prevent anyone from doing anything lawful.  Texans would still be able to carry their .357 Magnums openly in churches, nursery schools and bars (in those counties that have repealed prohibition).  They could still hunt deer with howitzers, buy grenade launchers with which to stand their ground and use Apache helicopters to round up the cattle at branding time.  And they could own as many AK-47's as their little hearts and minds desired even if their names appeared on terrorist watch lists.  At least they could do all these things as long as their pusillanimous politicians continue to kowtow to the NRA.  As discussed below, the proposed amendment would clarify the confusion that beset the Supreme Court in District of Columbia v. Heller.

While we're at it, there are a few other changes I'd like to see.  For one thing, I wish the media would stop referring to massacres as geographic phenomena:  Sandy Hook, Orlando, Fort Hood and so forth.  It is an easy solution for editors and pundits but it forever tarnishes the good name of some pretty nice places without adding any insight to the storyline.  Wouldn't it be more meaningful to name massacres in honor of those who promote them?  For example, we might refer to the slaughter of 20 six- and seven-year old children and 6 of their teachers on December 12, 2012 as the Wayne La Pierre Massacre.  The carnage at Virginia Tech on April 16, 2007 could be named in memory of Charlton "Over-my-dead-body" Heston.  The shootout at the San Bernadino Regional Center on December 2, 2015 could henceforth be known as the Mitch McConnell Bloodbath.  And, of course, the mass execution in Orlando of June 12, 2016 has to be the Donald J. Trump Liquidation.  These and other identifications would memorialize the logic and rhetoric of those who have so successfully advocated for the right to bear arms up to and including multiple warhead thermonuclear missiles.  I would make at least one exception to the naming convention.  I would name one particularly grisly case the Thoughts and Prayers Masacree to honor the mindless politicians who instruct their PR flacks to issue a statement based on the "T and P Template."

There were 372 mass murders in the United States in 2015 – incidents in which four or more innocent people were killed – and we're on track to exceed that in 2016.  And Mr. La Pierre keeps repeating his mantra, "Guns don't kill people;  people kill people."  Which, of course, is true.  People who can easily buy Kalashnikovs with 30-round magazines are able to kill multiple human beings indiscriminately.  Donald Trump has a slightly different take.  "If you take the guns away from the good people, the bad ones are going to have target practice."  Brilliant!  So the solution is to arm every man, woman and child in America.  The AK-47 was designed and is universally known as an assault weapon.  Its only function is to kill human beings by pumping a prodigious number of bullets over a wide area in a short time.  There is no other reason to own such a weapon.  Like any rifle, it is not a good choice if the object is self defense.  You can use it to hunt deer as long as you don't care about a clean kill.  It isn't even very accurate unless you're firing at point blank range. 

The problem is the founding fathers were asleep at the switch when they drafted the Second Amendment and failed to give it a copy edit.  It says:

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.

This 27-word sentence is divided into two clauses, the first of which argues that the maintenance of a well regulated militia is essential to the security of a free state.  The second says the people can keep and bear arms.  To some these ideas imply the keeping and bearing of arms by the people is essential to the security of the nation.  But the sentence does not define the terms "well regulated militia," "the people," "keep and bear" or "arms."  Fortunately, Justice Scalia did so in a remarkable Explication de Texte which became the opinion of the Supreme Court in the landmark case District of Columbia v. Heller, 554 U.S. 570 (2008).  In essence he argued that history and grammar support every individual's right to buy, carry and use pretty much any weapon they want.  Even nuclear hand grenades?  Do convicted felons have the right of concealed carry while proudly serving terms in Texas state prisons?  The late Justice Scalia said there was plenty of time to consider such questions.  Not enough time to save the babies and teachers slaughtered in 2012.

Americans have a high tolerance for logical fallacies and mendacious rhetoric offered in support of their preferred mythologies.  It is, for example, a myth that scientific theories are pure speculation.  Thus, millions of Americans are comfortable claiming that evolution is only a theory or that climate change is only a theory.  Ask them about fossils and they are likely to tell you that they are manufactured and sprinkled around the globe by the devil to confuse people.  Conspiracy theories play a large part in shaping public opinion.  Vaccines are part of the strategy of the pharmaceutical industry to promote epidemics and thereby increase the sale of other medications.  It is not only the uneducated and discontented that believe such nonsense.  Ideology is pervasive.  One of the most destructive is the doctrine of "original intent" promoted by many in the legal profession.

It is insane to think that we need to bind ourselves to whatever interpretation Justice Scalia and four of his colleagues decided was the precise meaning of the men who wrote the twenty-seven words of the Second Amendment.  Scholars can probe the language of the Bible or of Shakespeare or of James Madison without agreeing on their meaning.  Maybe the framers were worried that the government would disarm them and become dictatorial, that the state's militia would be used as an instrument of repression.  They had, after all, had experience with King George III.   It is an article of Tea Party faith that the jackbooted minions of the government are out to disarm them.  Maybe the states imagined calling up farmers in times of emergency and telling them to bring their own rifles and ammunition.  Who knows?  It worked at Lexington and Concord.  Maybe the "people" did not include women or slaves or felons or even white men who didn't own property.  We can be fairly sure that our founding fathers were not worrying about AK-47's or Uzi submachine guns.

The founding fathers clearly did want to insure "…the right of the people peaceably to assemble."  They did not draw a fine line between peaceably and whatever might be considered non-peaceable by Justice Scalia.  Today you are more likely to see the local Chief of Police standing ready to defend the right to peaceful assembly which is not precisely the same thing as peaceable.  The former means you won't riot or start shooting.  The latter is an early Quaker usage derived from the eleventh chapter of Isaiah describing the social contract after the coming of the Messiah:  "The wolf will live with the lamb, /  the leopard will lie down with the goat, / the calf and the lion and the yearling together; / and a little child will lead them."  However you read this, the wolf and lamb metaphor probably would preclude not only opening fire but also open carry which is inherently threatening.  During the Civil War, the Quakers themselves had extensive debates about the boundaries and limits of pacifism.  There is probably more consensus today and it is difficult to envision any Quaker approving of armed vigilantes guarding the border with Mexico or claiming to protect the Republican Convention in Cleveland.  Vigilantes may be peaceful but they are surely not peaceable.

Fortunately, the Supreme Court has never been asked to weigh in on the differences between peaceful and peaceable.  It has, of course, dealt with assembly and association cases but has almost always spoken in terms of peaceful assembly.  Not that it makes much difference.  Justice Scalia told us that the two clauses of the Second Amendment are not related to each other which is the same sort of warped logic as the Mad Hatter's assertion that guns don't kill people.

The Wild West is a defining part of the American origin mythology.  Swinging saloon doors, frontier justice, Boot Hill, the O.K. Corral and forty-five caliber "Peacemakers" worn on both hips.  Early in his career, Sam Colt said, "The good people in this world are very far from being satisfied with each other and my arms are the best peacemaker."  He died eleven years before the Peacemaker ® was introduced.  Ever since Cain slew Abel, people have killed other people.  God may have said they shouldn't but the NRA and its political toadies beg to differ.  They believe that governments exist to make it easy.

Subsequently

On March 28, 2018, in the aftermath of a horrendous school massacre in Parkland, Florida, retired Justice of the Supreme Court John Paul Stevens published an Op-Ed essay in The New York Times suggesting that gun control advocates should press for repeal of the second amendment.  Justice Stevens had been the author of the principal dissent in the 2008 Heller case.

STUCK IN REVERSE

Jerry Harkins

It was Thomas Riley Marshall, one-time Governor of Indiana and two-term Vice President of the United States who said, "What this country needs is a really good five-cent cigar."  He was being sarcastic about politicians who like to bloviate about all the problems facing the nation.  Today he might add that the cigar should be non-toxic, non-polluting and non-addictive.  It should smell like lilacs in the early morning and help users lower bad cholesterol. 

Make no mistake about this:  the American people today are in a real funk.  A lot of them are getting ready to vote for the least qualified, most dangerous candidate that has ever been nominated for dog catcher never mind President of the United States by a major political party.  They will be voting for and expecting radical change in pretty much every department of their lives, hoping but not really expecting that things will get better.  Others have lost all hope.  The suicide rate has increased by 24% since 1999.  College students want "trigger warnings" about assigned readings that might disturb their delicate sensibilities.  Several states want teachers to carry guns in the classroom.  Twenty-three states have passed "Stand Your Ground" laws which seem to be a variation on the theme of shoot-first-and-ask-questions-later.  New York, California and Michigan now require college students to obtain "affirmative consent" from each other before sexual activity commences and again before it advances from one stage to the next.  This involves teaching them that "Yes Means Yes" and "No Means No" which apparently many of them did not learn at their parents' knees.  Mr. Trump wants to build a twenty-foot high wall along the border between the United States and Mexico which is 1,989 miles long.  The Great Wall of China is nearly seven times longer and five feet higher but it was instantly overrun by the Mongols and, later, by others.  Mr. Trump has never read Robert Frost's poem that begins with the line, "Something there is that doesn’t love a wall."  Then there's Bernie Sanders who would like to provide free college tuition to everyone.  He proposes to pay for this by adopting the platform of the children who brought you Occupy Wall Street.  The reasons for this mass psychosis are many and you already know the litany which includes but is not limited to four major social dislocations:  the information revolution, the global economy, the death of God and institutional religion, and the spoliation of the natural environment.

·         Through economic thick and thin, the middle class has been dwindling ever since the oil embargo of 1973.  Average family income has declined substantially in spite of the facts that productivity has been rising steadily and we are working longer hours.   For the first time in our history, the prospects of our children are not nearly as promising as were those of their parents and grandparents.  They won't be able to get a mortgage until they pay off their student loans which will be just in time to help their own kids through college and then their aging parents through retirement.   To a lot of people, it seems the American Dream is dead.

·        Our institutions have failed us.  The government is paralyzed at every level by ideological bankruptcy and blatant corruption.  We face major challenges but are beset by failure and/or procrastination.  The trillions of dollars we have invested in military assets cannot defeat a ragtag group of terrorists.  Airport security has become an exercise in impenetrable regulations, mismanagement and interminable delays.  Major segments of the business community have become anti-social cabals focused exclusively on generating private wealth by defrauding the public.  Our schools are unable to teach either basic skills or the kinds of knowledge we need in the post-industrial economy.  Our churches promote absurdist, medieval doctrines and preach hatred and exclusion.  Our news media revolve around celebrity gossip, lurid crimes, titillating sex and "virtual" reality instead of truth.  It is, of course, essential to note that we are our institutions.  We have, as Pogo said, "…met the enemy and he is us."

·        Everyday life is tough, tougher than it used to be.  Airline travel has become torturous.  The carriers compete to see who can provide the worst service at the highest cost and the greatest hassle.  You get medical bills you have no hope of understanding and notices from your insurer that are equally dense in explaining why they won't cover the costs and why they want to second guess your physician.  Your automobile comes with air bags designed to spray you with deadly shrapnel and software designed to produce deceptive mileage and pollution reports.  Meanwhile, we are choking on our own traffic.

·       The Information Revolution has backfired.  We have lost whole categories of decent, family-friendly jobs, replacing them with robots which assure us that our call is important to them but the waiting time is at least fifteen minutes and we might be better off "visiting" them on their web site.  Customer service has been outsourced to remote corners of the world where people speak languages we never heard of.  Social media have transformed us into isolated actors whose dreams and aspirations must be expressed in 140 characters or less.  Everybody is spying on us.  The government monitors our phone calls.  Businesses monitor our purchasing and web sites keep track of our internet searches.

Nor is our American discontent unique.  All over the world, people are fed up with things as they are.  They rant and rave and riot in the streets and fulminate on the so-called social media but the solutions they propose are simplistic.  Ignorance and mendacity are the order of the day everywhere;  greed has overwhelmed the social contract;  the world is pervaded by a sense of alienation and the fact of withdrawal into smaller and smaller tribal entities protected by walls of suspicion and indifference.  The British vote to withdraw from the European Union is a case in point.  At the very least, it was a backward decision, a yearning for a time long gone when Great Britain really was bestriding the world and ruling the waves.  That Brexit was brought about by the inanities of a comic opera bureaucracy in Brussels is true but irrelevant.  For all its many faults, the EU was a progressive movement which held out the hope of reversing two thousand years of constant and savage warfare.  Instead, Europe seems to be opting for separatism and political fragmentation.  The mood is reminiscent of the aftermath of World War I:  shock, disbelief and disillusionment.  The unthinkable has come to pass.  Tranquility and contentment have gone out of the world.  As William Butler Yeats wrote in 1919:

Turning and turning in the widening gyre

The falcon cannot hear the falconer;

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

At the present moment, it is hard to imagine what could happen that might bring about a turnaround in either realities or perceptions.  From an American perspective, the historical evidence is not promising.  The great empires of the past are all gone, having collapsed into long periods of decline and irrelevance­­.  Egypt, Greece, Rome, Mongolia, China and, more recently, the Ottoman and British empires and the Soviet Union all rose and fell dramatically.  Lesser entities including Spain and Portugal occupied major portions of the globe for brief periods before decaying.  The Thousand Year Reich lasted less than twelve years and reached its peak only twenty-five months before its ruination.

Te be sure, any enumeration of our discontents would be incomplete if we failed to pay homage to the historical truth that Americans have been here before and have prevailed.  We must constantly remind ourselves that even with the slavery, Indian removal, Know Nothingism, anti-unionism and jingoism that litter our history, we have made overall progress toward the ideals of our Declaration of Independence.  Until recently we have always been resilient in pursuing the American Dream.  If, for example, during the Great Depression our popular anthem was "Brother Can You Spare a Dime?" that is not the song we associate with it today.  Rather, as President Obama reminded us in his first inaugural address, it is the Jerome Kern, Dorothy Fields 1936 show tune:  "Nothing's impossible, I have found / For when my chin is on the ground / I pick myself up, / Dust myself off / And start all over again."  With the twenty-twenty hindsight of eighty years, we can see the Depression as an era of creativity and renewal.  Time after time in our history we have bounced back from the brink.  Lincoln preached "a new birth of freedom" and Franklin Roosevelt inaugurated a "New Deal."

As he took the oath of office on March 4, 1933, the United States was experiencing a calamitous economic disaster.  As he said:

Values have shrunken to fantastic levels; taxes have risen; our ability to pay has fallen; government of all kinds is faced by serious curtailment of income; the means of exchange are frozen in the currents of trade; the withered leaves of industrial enterprise lie on every side; farmers find no markets for their produce; the savings of many years in thousands of families are gone.  More important, a host of unemployed citizens face the grim problem of existence, and an equally great number toil with little return.  Only a foolish optimist can deny the realities of the moment.

But he had already made his famous remark about fear being the only thing we have to fear and he had prefaced that with the bold assertion that, "This great Nation will endure as it has endured, will revive and will prosper."  It did.  First the government stopped the bleeding with its plethora of alphabet soup job creation programs:  AAA, CCC, CWA, FHA, NIRA, SSA, TVA, WPA and all the rest.  War came and with it the jobs that created the wealth that fueled the post-war boom.

History, of course, is not destiny.  We cannot take comfort from our own past resilience any more than we should take dread from the collapse of the Roman Empire.  We are predestined to neither renewal nor decay.  We cannot see the future but there is one certainty:  we are our own worst enemy and our own best hope.