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