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           repealed.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still be able to carry their .357 Magnums openly in churches, nursery schools and bars (in those counties that have repealed prohibition).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.