Monday, January 21, 2013

Repeal the Second Amendment

I never considered myself a flaming liberal with, as the NRA likes to say, a “gun grabbing agenda”.  I'm not a hunter and I don't own a gun, but I've always supported those that did want to own a gun for hunting, target practice, or simple self defense.  After all, this is America, land of the free!  The right of a citizen to own a gun is as American as Mom and apple pie, right?

After the Newtown tragedy, I decided to take a long and careful look at this "God-given right" and came to a surprising but unavoidable conclusion:  the Second Amendment must be repealed. See if you agree.

A Brief History:

The Second Amendment consists of only 27 words, yet millions of words have been spoken and written about it.  Here it is in all of its majesty:
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 constitutional scholars agree that the Second Amendment was added to the Bill of Rights to reassure the States that their militias would not be eliminated.  At the time, the States viewed militias as being “checks” on the standing army should the central government turn tyrannical.  There is also evidence that slave States feared the elimination of their “slave patrol” militias which helped to regulate and enforce the slave trade.

Slavery was abolished in 1865, never to return.  The ability of State militias to act as “checks” on the combined power of the U.S. Military ended well over a century ago.  State militias no longer exist!  As such, the Second Amendment should be regarded as nothing more than a quaint anachronism, similar to the Third Amendment which prohibits the quartering of soldiers in private homes without the owner’s consent. Unfortunately, that isn't the case. 

Many historians consider the Second Amendment, authored by James Madison, to be one of the poorest written sentences in the entire Constitution.  Yale law professor Sanford Levinson refers to it as “The Embarrassing Second Amendment”.   Constitutional scholars debate over the meaning of almost every one of its 27 words.  The pivotal debate, though, is whether this amendment applies unconditionally to all citizens at all times or only to those citizens serving in “a well regulated Militia”?  

In the past, the Legislative Branch of the government tap-danced around this debate, enacting firearm legislation that blithely violated the “shall not be infringed” clause, relying on the Judicial Branch to rule (when needed) that the Second Amendment applies only to activities involving “a well regulated Militia”.   

This proved to be a successful strategy in the case of The National Firearms Act of 1934, which defined various categories of firearms and severely restricted the purchase and ownership of Title II weapons (machine guns, short-barreled shotguns, bombs, grenades, missiles, poison gas, etc.).  In United States v. Miller (1939), the Supreme Court rejected a claim that this act violated the Second Amendment right to own a short-barrel shotgun, stating:
"In the absence of any evidence tending to show that possession or use of a [short-barrel shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
The Gun Control Act of 1968 built on that court decision by regulating the firearms industry even more, prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.

However, the government's gun control strategy disintegrated in 2008 by a challenge to the District of Columbia’s Firearms Control Regulation Act of 1975 which banned residents from owning handguns, automatic firearms, or high-capacity semi-automatic firearms.  In District of Columbia v. Heller, the Supreme Court ruled, by a margin of 5-4, that:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part.”

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense.”
Game over.

Under this interpretation, all hope of enacting meaningful gun control legislation in the United States vanished.  Effectively, the Second Amendment now reads:
The right of the people to keep and bear Arms shall not be infringed.”

Moving Forward:  Step 1

President Obama recently announced a series of initiatives designed to reduce gun violence in the United States.  They include

  -  Requiring criminal background checks for all gun sales
  -  Banning assault weapons
  -  Limiting magazine capacity to 10 rounds
  -  Banning armor piercing bullets

Although a majority of Americans support these initiatives, turning them into actual legislation will be an enormous challenge, one that is probably beyond the ability of our current Congress.  But even if  Democrats and Republicans set aside their differences and enacted a truly elegant piece of gun control legislation, it would be a total waste of time.  A single U.S. citizen could negate their effort by simply challenging the new legislation in court.  Based on the legal precedent set in District of Columbia v. Heller, the new legislation would have to be declared unconstitutional.

As such, the absolute first step in the herculean task of meaningful gun control must be the repeal of the Second Amendment.  Otherwise, all other initiatives will only be exercises in futility.

Moving Forward:  Step 2

Once the Second Amendment has been repealed, what would be the next logical step to effectively reduce gun violence in the United States?  Would it be to implement the Obama initiatives outlined above?  Almost certainly not.

Improved criminal and mental background checks would not have prevented the Newtown tragedy since the guns used in the shooting were stolen.  A ban on assault weapons will not apply to many semi-automatic firearms that can easily inflict the level of damage done at Newtown.  Limiting magazine capacity to 10 rounds is unlikely to meaningfully reduce future casualties either.  As shown in this video, it takes an experienced gunman about one second to change a magazine.  The bottom line is that none of the Obama initiatives address the central issue surrounding gun-related homicides in the United States: easy access to simple handguns.  

As such, the next logical step forward is to educate the public on the impact that individual handgun ownership has on safety in the United States.  In that vein, here are some sobering statistics.

Ironically, this chart (created by data provided by the FBI) is currently being used by the NRA and other opponents of an assault weapons ban to show that simple handguns, not AR-15 assault rifles, are responsible for most murders in the U.S.  In this rare case, the NRA is absolutely correct.  Assault weapons should be banned, but they are only a small subset of a much larger problem.  What this chart clearly shows is that guns of all kinds (and handguns in particular) were responsible for 67.5% of all homicides in the U.S. in 2010.

A separate world-wide analysis, conducted by the United Nations Office on Drugs and Crime, is in line with the FBI data.  It reports that, in 2009, the U.S. had 15,399 homicides, 66.9% of which (10,300) were due to firearms.  This results in a firearm homicide rate per 100,000 people of 3.3.  In comparison, the United Kingdom had only 722 homicides with only 6.6% (46) due to firearms.  The U.K. firearm homicide rate per 100,000 people was a mere 0.07.  That's right.  After adjusting for population differences, the U.K. firearm homicide rate in 2009 was 47 times smaller than the U.S.firearm homicide rate!   If the U.S. had matched the U.K. results, the number of U.S. homicides in 2009 caused by firearms would have been only 232.  Over 10,000 lives would have been saved. 

But that's not all.  According to the Center for Disease Control, guns are the cause of over half of all suicides in the U.S.  According to, in 2009 there were 18,735 gun-related suicides in the U.S., a rate of 6.11 deaths per 100,000 people.  In the U.K. there were 101 gun-related suicides, a rate of 0.16 deaths per 100,000 people. If the U.S. had matched the U.K. results, the number of U.S. gun-related suicides in 2009 would have been only 490 17,884 lives would have been saved. 

I think it's safe to say that the opportunity of saving almost 28,000 lives a year is a worthwhile goal.

Moving Forward:  Step 3

Tragically, it seems to take an incredibly horrific event like the massacre of innocent children before the magnitude of the gun violence problem is brought home to the public.  And in this case I'm not referring to the shooting in Newtown;  I'm referring to what happened in the United Kingdom almost 17 years ago.

On March 13, 1996, a 43-year old gunman entered a primary school in Dunblane, Scotland, armed with 4 handguns.  He shot and killed 16 children and 1 adult before committing suicide.  It was one of the deadliest criminal acts involving firearms in the history of the United Kingdom.  The ensuing public outcry resulted in the Firearms Act of 1997, which almost completely banned the private possession of handguns.   As a result of this and other Firearms legislation, the general public throughout the U.K. is now prohibited from owning:
  • An automatic weapon
  • A semi-automatic weapon greater than .22 caliber 
  • A "small firearm" (barrel length of less than 30 cm or an overall length of less than 60 cm)
  • Armor piercing ammunition
  • A firearm disguised as another item (e.g., a cane)
  • Rockets, mortars, and similar explosives
All other rifles and ammunition are permitted with "good reason", but that reason cannot be simply self-defense. 

Enacting gun control legislation such as this in the United States will not be easy;   indeed, it will be a long and arduous task.  But it must be attempted.  Otherwise, tens of thousands of Americans will continue to die each year from gun violence and the likelihood of another Newtown-like massacre will remain strong.

Wrapping It Up

For 217 years the Supreme Court held that the Second Amendment granted the right to bear arms only to  members of a "well regulated Militia".  However, 5 years ago, the Court (by a narrow 5-4 margin)  extended the scope of this amendment to include private citizens as well.  Until this travesty is corrected, the enactment of meaningful gun control legislation is impossible.

It is not acceptable to simply wait and hope that a future Supreme Court decision overrules the catastrophic decision reached in District of Columbia v. Heller.  The Second Amendment must be repealed.  It cannot be left to linger in the Constitution like a loaded musket, waiting to misfire in the wrong hands.