In light of all the discussion of Heller I thought I’d talk about something that’s been on my mind for a while. I really think we should repeal the Second Amendment. I see no reason for it to exist. I am not actually trying to make an argument for gun control. I’m generally for gun control, but it’s a tricky question. The “then only the criminals will have guns” logic could apply in cases where enforcement is bad. It might be a good idea some places and a bad idea others, or having that kind of hodgepodge could make all the rules unenforceable. I have my opinion, but I can easily see grounds for disagreement.
That said, I don’t see why we have the Second Amendment — even assuming gun control is frequently dumb. Of course, part of whether you agree with me depends on what you think the Constitution is for. If it’s just a place where we ban laws that we are pretty sure are stupid, then fine. I don’t think that really makes sense as a justification for a constitutional amendment, though. After all, a constitutional ban is an anti-democratic thing. Sure, we think a law banning free speech is dumb, but presumably if one were to pass it means that people at that time disagreed with us. Who’s to say we know better what’s best at that time and place than they do? Our whole government is based on the idea that a vote by the majority is both the most practical and most morally justifiable way to make laws, so you better have a good reason for something like a constitutional amendment, which says that even if everyone in the country wants a particular policy, it won’t happen.
There are a couple reasons I see for constitutional bans on types of legislation (as opposed to other constitutional provisions that determine government structure). One is an assumption that a certain kind of act is necessary for a functioning democracy. Free speech and freedom of the press seem to obviously qualify here. Without them the method of government outlined in the constitution wouldn’t work, so it is in some sense an extension of the government structure provision. To undermine free speech would be as big a change to how the country is governed as changing the apportionment method of the legislature.
It seems obvious to me that the Second Amendment doesn’t qualify for this. Many of the founding fathers thought so. An unarmed populace and/or a standing army were considered precursors to tyranny, but we’ve since seen a plethora of totally functioning democracies that have very strict gun control laws. Moreover, in US history there is no evidence that this works. An armed revolt is totally contrary to the rule of law, and those who resort to it tend to do so more because of displeasure with the law than because they were treated unjustly by it.
The other reason that would seem to me to justify a constitutional prohibition on some sort of law is a belief that legislation of that sort would be fundamentally morally wrong. It would have to violate someone’s rights, and usually this group would be some sort of minority, since a democracy is naturally pretty good at protecting the rights that apply to all/most voters.
Religious freedom and protections against racial discrimination seem to clearly fall into this category, but I don’t see how gun control does. Many reasons are given. “It’s culturally important” is frequent, but that’s true of any number of things. I see no problem with the legislature outlawing something, even an important cultural practice, if it thinks doing so will save huge numbers of lives.
The claimed underlying justification that makes the most sense to me is that the real fundamental right is self-defense, and gun control is an extension of that. However, I don’t see how this can be an absolute right. Sure, if someone’s attacking you you have the right to use anything at hand to defend yourself. If you happen to have a tank there then you’re welcome to shoot them with it. That doesn’t mean you have a right to own that tank in the first place. By that logic any weapon at all would be allowed. (I don’t think anyone believes that the Second Amendment protects the right to own fighter planes or nuclear bombs — and if they do, I would bet they’re for revision of the amendment at least.) Allowing people to own tanks would be obviously insane. Sure, if you own a tank, you’d be safer, but your owning a tank would make everyone else less safe and the government less able to maintain order. If it’s ok to make that analysis with tanks and you don’t violate any important rights, why not make it with guns? We might not reach the same decision, but it doesn’t seem like the rights issue changes any.
It’s not even clear, if you do believe self-defense is a fundamental right, that legalizing gun ownership is the best way to protect it. I’m all for safety and self-defense, but I feel much safer and able to defend myself when neither me nor my mugger has a gun than when we both do.
The real debate over gun control is a practical one. I have a lot of sympathy for judges who feel it’s not their role to make policy decisions. If the Second Amendment allows for a ton of gun control, it is basically meaningless. To whatever extent it’s actually doing anything, it’s preventing democratic outcomes. We should get rid of it and deal with the real issues here.
Tags: gun control, law
June 30th, 2008 at 10:07 pm
Explain to me how you can stop muggers from having guns.
June 30th, 2008 at 11:38 pm
My argument in no way relies on gun control being effective at keeping muggers from having guns, or even on the idea that gun control of any kind is good policy. There are lots of dumb policies that aren’t banned by the constitution. I believe in democracy, and that government policies should be decided by the people and their representatives. I even believe that the voters have the right to implement dumb policies. I believe there are some limits (like violating the fundamental rights of minorities) and that courts and constitutional prohibitions are meant to protect against those potential abuses. If you have an argument as to why gun control constitutes such an abuse, I’d love to hear it.
For the sake of argument, I do think it is plausible that gun control could reduce the number of muggers with guns. Guns aren’t exactly something you can make in your basement. You could easily mandate that manufacturers have to account for each gun, reporting the eventual owner (who would have to have legal permission to have it) or prove it was destroyed when not sold. And, of course, the jail sentence for getting caught with an illegal gun would deter some people. Obviously, many guns will get by, because of bribery, fraud, smuggling, etc., but it’d be a reduced number. It would mean less accidental gun deaths, less armed muggers, but less well-defended mugging victims. The question is just which effect will be greater. That’s a policy decision, not a rights decision. Whether gun control is a good idea could very well vary based on time period, region, etc. That means it’s not a fundamentally illegitimate government act, and should be decided by a legislature.
Banning the practice of a religion is bad. It’s unjust no matter what motivation the government had or how large a majority supports it. It’s not a legitimate government action. That’s the kind of thing the Bill of Rights exists to stop, and I don’t see how gun control falls in that category.
July 13th, 2008 at 11:12 pm
“There are 280 million firearms in private hands in America, and last year there were about 300,000 gun crimes. That means that at least 279,700,000 guns did nothing wrong.” – Jim Kessler, Democracy Journal
Source
July 14th, 2008 at 1:20 am
Progressive Conservative: That’s a fair point, but at best it’s an argument for why guns shouldn’t be banned. There are lots of things it would be foolish to ban, though — light bulbs, gardening trowels, home alarm systems. Is there a reason that guns deserve special constitutional protection from any ownership restrictions whatsoever?
July 14th, 2008 at 11:10 am
I think the Founding Fathers made it clear that they believed an armed population was vital to preventing the tyranny of the goverment.
July 14th, 2008 at 6:49 pm
I believe A already responded to that issue in his original post, when he wrote:
I’m sure he’d be happy to discuss this point further if you disagree with it, but I thought for now I’d just point it out.
July 15th, 2008 at 9:48 am
Yes – I saw that originally, though I don’t agree with his assesment. I could also name many countries where an unarmed population was taken advantage of. It cuts both ways.
I assume he is also basing his point on western Europe. I do not think that our two cultures are as similar as some would liek us to believe.
July 15th, 2008 at 4:38 pm
Yes, I am including western Europe in my examples, though other countries like Japan also work. I fully recognize that you can find both democracies and dictatorships with and without substantial private ownership of weapons. That, though, is exactly my point.
If private ownership of guns were necessary to prevent tyranny, it would be very rare to find a democracy still existing without gun ownership. This clearly isn’t the case. If, however, gun ownership has nothing to do with whether the government becomes tyrannical, you could easily find whatever combination of gun ownership and government type that you wanted.
I am in no way claiming that gun ownership is bad for democracy. I’m just claiming it isn’t good either. Gun control might be a bad idea, but not because it would lead to tyranny, and the other reasons don’t seem like things that rise to the level of constitutional protection.
And yes, the cultures are different. Guns are much more culturally important to Americans than to the Japanese, and that’s a good argument for the US having looser gun control than Japan. I just don’t think cultural importance qualifies something for constitutional protection. Baseball is also culturally important. It’d be idiotic to ban it. However, if for whatever reason a majority of Americans felt they were safer without it, I wouldn’t want the courts trying to overrule them.
July 16th, 2008 at 10:40 am
Maybe the problem is that I don’t understand your arguement that, “To whatever extent it’s actually doing anything, it’s preventing democratic outcomes. We should get rid of it and deal with the real issues here.”
July 17th, 2008 at 3:19 pm
Well, people disagree over how broadly to interpret it and what level of gun control is constitutional. I’m not taking a stance on that here. What I am saying is that whatever gun control it does ban, we shouldn’t (constitutionally) ban. If the ban doesn’t meet the criteria I discussed in the post (or maybe there are other reasons I left out), then we should decide the issue democratically through the ballot box. I’m not trying to argue that gun control is good or bad, just that it should be decided by public opinion like every other policy issue, rather than by judicial fiat, which is exactly what would happen if we repeal the amendment.
July 18th, 2008 at 1:43 pm
I actually prefer SCOTUS defining issues like this. I think guns are one issue that will always reflect an ignorance of the populace when left to a referendum.