Anyone’s life can either change or end in a matter of seconds. This has always been true, of course. But events of the past couple of decades in America have amplified our awareness of just how random that can be. Choices that should never be so fateful are now forcefully so: going to church, visiting a shopping mall, taking in a concert, or even showing up as a child to school. All of these choices and places now share a tragic thread: mass murder by gunfire. And every time, without fail, and before the smoke has even cleared, the 2nd Amendment is invoked as a barrier to potential solutions. There is no question that guns are only a part of the problem here. There is also no question that the Constitution guarantees the right to bear arms. What I am going to argue here is that this problem can be addressed head on, including how our society deals with guns, without altering or impinging on the 2nd Amendment.
I really want to make this clear: I have no desire to repeal the 2nd Amendment or even change it. There are good reasons it exists in the first place, and I think it would be best to start with that.
As mentioned in an earlier post, many of the Amendments in the Bill of Rights trace back to the English Bill of Rights of 1689, and the 2nd Amendment is no exception. Catholic kings leading up to that time had disarmed Protestants as a means of maintaining power, and also wanted to maintain standing armies. Parliament generally held the opposite view, leading to the English Bill of Rights of 1689, which was accepted by the Protestants William III Mary II. In fact the English document actually explicitly says that “Protestants may have Arms for their Defence suitable to their Conditions and as allowed by law”.
Fast forward to the years leading up to the American Revolution, and once again we see an increasing degree of oppression from the British over the colonists, which included the building of standing armies and the disarmament of colonial subjects by King George III. The rebellious colonists, in turn, created their own militias and stockpiled weapons, all of which eventually enabled them to fight the Revolutionary War. Once the war was won, there were many state versions of what would later become the 2nd Amendment, which synthesized the distrust of standing armies with what many feel is an innate right of any citizen of any free country to bear arms. The final version of the 2nd Amendment was ratified in December of 1991 along with the rest of the Bill of Rights:
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.
Most of our history in interpreting the 2nd Amendment has been in the context of the militia, and not an individual’s right to bear arms. That debate only gained steam in the latter stages of the 20th century. Many Justices, including the conservative Warren E. Burger, argued against the notion that the 2nd Amendment guarantees the right to bear arms to individuals (in fact he was not a fan of the 2nd Amendment in general). But ultimately, a few Supreme Court cases in the 2000’s determined in favor of the individual, most notably District of Columbia v. Heller (2008).
So accepting that interpretation, let’s dive back into our current problem with mass shootings, and the notion that the 2nd Amendment leaves us no choice but to continue to accept such incidents as the price for living in a free state. This notion is flawed from the outset, because every single Amendment to our Constitution has been subject to debate and interpretation by the courts, all the way up the highest court in the land. Including, as just noted, the 2nd Amendment, in a process by which the right of the individual was confirmed.
On a related note, every single Amendment has also been shown to have its limits. Consider, for example, the right to free speech in the 1st Amendment. If a person tells lies that damage another person’s reputation, they can be held accountable in a court of law. If a person threatens the life of the President, they can be arrested. There are limits on free speech where it impinges on the rights or laws that must exist in a free and stable society. The 2nd Amendment should not be considered any more immune to such limits. Yes, the 2nd Amendment is sacred, but like the entire Constitution, it is both sacred and subject to evolving interpretation. To restate in the form of my favorite Thomas Jefferson quote, etched in his Memorial:
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”
And allow me to also quote someone else:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Obviously a liberal, right? No, that was ultra-conservative Justice Antonin Scalia, summarizing the Court’s majority opinion on the District of Columbia v. Heller case, barely more than a decade ago.
Going back to Jefferson’s quote, what circumstances have changed? The most obvious answer is technology, and this should have more impact on the argument over the 2nd Amendment than is generally seen. Clearly, guns themselves are far removed from what they were in 1791. Automatic and semi-automatic weapons make it possible to unleash a fury of bullets in seconds, and armor has similarly advanced to where one person can kill many with relative ease before succumbing to return fire.
But this is not the only way technology has altered the environment surrounding the 2nd Amendment. The revered intent of protecting ourselves from an oppressive regime has effectively been neutered by the technology at our Government’s disposal. I could go on and on about that without ever having to discuss something as extreme as nuclear weapons. For one thing, our Government has tanks, and we generally don’t. Most adults can also remember the pinpoint precision with which our forces destroyed targets in Desert Storm, and that was nearly three decades ago. Modern missiles can target not just a building, but a specific part of that building. Modern satellites can pinpoint the location of individual people for targeting by a variety of weapons. And the advances continue – high energy lasers can set fire to targets without firing a single bullet. Suffice it to say, the Government has a distinct advantage over any militia. The combined odds that our Government would attempt to militarily subdue its citizens and that we would be able to thwart it are overwhelmingly low – far lower than the current odds of a mass shooting occurring on any given day. Which brings us to a tried-and-true business practice: risk management. Given the relative odds, which problem should we be trying to solve here?
All of that said, if resistance to solving the epidemic of mass shootings continues on the basis of the Constitution, I would argue there is also a Constitutional reason to tighten our regulation of guns. We’ll talk about the 1st Amendment in the next post. But among many things it declares “the right of the people peaceably to assemble.” I would strongly assert that right is being infringed today. Many of us are growing increasingly anxious about going out in public, for fear of being one of the next victims of a mass shooting. Some are even staying home when they would have otherwise gone out. As much as the Founding Fathers did not want us to be oppressed by our Government, I cannot imagine they would have wanted us to be oppressed by fear, directly induced by the ease with which psychopaths can legally amass as many powerful weapons as they choose.
Our Founding Fathers and renowned conservative Justices agree: our laws must be able to change as our environment changes over time, and it is completely Constitutional to impose restrictions on who can get what kinds of guns. We must stop using the Constitution as an excuse not to act – it is literally quite the opposite, an enabler that is screaming out to us to make a change. We don’t need to change our Constitution. We have changed our world. Now we must change the way we choose to live in it.