Deal with the Crisis, then Reform Society and Enhance Amendment II's Penumbra.
by John Otrompke
New York Times newspaper writer Bret Stephens recently wrote an editorial calling for the “repeal” of the Second Amendment,1 apparently motivated by the unabated massacre of schoolchildren.2
This phenomenon is both historically new and uniquely objectionable, and I agree that society must make the most diligent efforts to uncover what’s going on. I write only to express the objection that repeal is premature, because I don’t believe that either the current Supreme Court, or the Second Amendment, pose much of an obstacle to solving the problem. I’m afraid that Stephens is wasting his time fighting a paper tiger.
Personal enforceability of the Second Amendment is a notion of recent vintage, deriving from two recent Supreme Court cases,3 which were however limited in scope.
The Supreme Court only upheld the right to own a handgun in one’s home,4 and hasn’t touched the Second Amendment in almost ten years.
In fact, I believe that if Congress were to temporarily ban virtually every gun in the country except handguns in the home, while figuring out what to do, the Roberts Court might allow it, reasoning that the continuous series of atrocities is a crisis that meets the strict standards for interfering with enumerated rights.
It seems to me that might be a good idea, because hopefully researchers and policy experts could uncover what’s been going on, and solve the problem of massacres of children and young people.
On the other hand, the idea of arming some teachers and probably some students, is also not a bad idea. The practice of compulsory education causes problems with both proposed solutions. What gives a society that can’t even protect its young people from being slaughtered the right to use compulsion to teach anyone anything?
Probably the worst thing that could be done would be for the two sides to continue arguing and trying to twist one another’s arm, without doing anything. It is an emergency, and the people need to conduct pilot experiments to see what works.
That problem being solved, the people should indeed consider Stephens’ proposal for a constitutional amendment, because there are actually several shortcomings of the Second Amendment, in addition to the abominable problem of young people being massacred; that is, there are other ways in which the penumbra of interests referred to in the Second Amendment is mismatched with the society we have today.
Within this penumbra is included the notion of civic virtue. I suspect that we would face the question of whether it is the Second Amendment we want to reform, or our society, and in my opinion, the answer is both.
An Unnecessary Linguistic Mystery Unraveled:
The Missing Prong to the Second Amendment
Although I am a meta-pacifist (a neologism I will explain momentarily), I was very glad to discover the notions behind the Second Amendment, because they help me translate certain radical ideas I’m familiar with into American constitutional language. They also illustrate something which is wrong with our society: nobody- Democrats, “Republicans,” or the NRA, adequately support the values that are behind it. The residue of the Second Amendment and its three prongs are like the archaeological shards of an ideal which our society destroyed, buried, and forgot about centuries ago, and we suffer mightily for not understanding them.
Many have commented on the curious wording of the Second Amendment,5 and some used to opine that the first clause, about militias, restricts the second, about guns. But what these commentators miss is that in the original draft language proposed by states, there was a second clause about a phenomenon which was unpopular at the time: “the standing army.”6
At the time the Constitution, and thereafter the Bill of Rights, were created, “standing armies” (professional armies maintained by the sovereign in peacetime), were unpopular. The American revolutionaries inherited this aversion from the British, who had had their own revolution in the preceding century. The British generally hated their country’s soldiers, viewed them as untrustworthy potential oppressors of the state, and called them “Redcoats”; Rudyard Kipling wrote a poem about it called “Tommy.” The feeling was so ingrained that during the American Revolution, the British Crown had to recruit Hessian mercenaries to fight in America.
Another argument against having a standing professional army in peacetime is that once the army exists, its members have to invent reasons for them to continue to have their jobs, so they travel the world stirring up unnecessary quarrels.
Personally, I loved the discovery that the authors of the Second Amendment opposed the military, because In my view, America’s extensive foreign military policy of the past 100 years (including World War I and the works of Theodore Roosevelt) are a huge part of what’s been wrong with our society.
Ultimately, the framers of the Constitution decided to permit a professional army, but the policy against a permanent standing army survived in the constitution, in the provision forbidding Congress from financing it for more than two years at a time.7
Society was not intended to be defended permanently by a professional army; instead, it was to be defended by “the entire people in arms,” that is, the “militia.”
There was also a history of religious violence in Britain between religious groups, with some groups having been disarmed, so the framers wanted everyone to be able to have guns.
Draft versions of the Second Amendment also contained the language that became the Third Amendment (no quartering of troops in homes); hence, three prongs.
A Penumbra Unloved by Liberals and Conservatives Alike
The “militia” being the entire people in arms, and primarily responsible for the security of society, it was also thought that the militia would have the blessing of the founders if it became necessary to overthrow the government.8
This “right of revolution” was also associated with other aspects of the vision of the 18th century “republican” authors of what became the Second Amendment: in a society governed by civic virtue, and both united and equalized by arms, there would be relatively little economic disparity, because everyone must have a stake in the social order. And in a society in which the people are armed, and the government is not very well-armed, the government would rule with a much lighter touch:
When tyrants tremble in their fear
And hear their death knell ringing,
When friends rejoice both far and near
How can I keep from singing?
No storm can shake my inmost calm,
While to that rock I’m clinging
Since love is lord of heaven and earth,
How can I keep from singing?
-Robert Wadsworth Lowry
I should add a recognition that the racist notions of some of those who authored the Second Amendment were evil; but I assume that the crimes against humanity they committed do not hopelessly doom the rest of their vision.
In a sense, then, Stephens and other liberal commentators are right: the notions associated with the Second Amendment do not match our society, causing important problems. In addition to the atrocities to which innocent children are so often exposed, there are at least two others.
First, we have a permanent standing army. Especially given the creation of our nuclear arsenal, it would be unlikely for Congress ever not to renew the biennial financing for the U.S. military.9
Secondly, given the sophistication of the federal military’s armament, it would be inappropriately difficult for the people to overthrow the government.10
According to some, the realization of the Second Amendment as originally intended would be dangerous and inappropriate, because the American people lack the “civic virtue” anticipated by the 18th century “republicans.”
The answer, according to one author, is to remake not the Constitution, but remake society to be like the society the framers envisioned, by building civic virtue.11
What is to be Done?
Hence, we are led to an important question: do we want to reform the constitution, or to reform the body politic to more closely resemble the idealistic society the framers envisioned?
I say both.
I generally favor constitutional amendment, because it reminds people that we are capable of self-organization; exercises in self-government build civic virtue.
And according to Stephens, we need constitutional change anyway: If society decides that we don’t want the Second Amendment, we have to change the constitution; if, on the other hand, we want a real Second Amendment, we still have to change it.
We have to choose: do we want our society to have the power to overthrow the government? Stephens argues almost as if he believes it’s impossible that the federal government could ever commit a great evil (like Viet Nam).12 Or does he think that we should ignore it? Or that we should not be able to use violence against the state to redress such evil?
I told you earlier that I am a “meta-pacifist,” a category I invented. I believe it conceivable that people may discover a cure for violence, and I assume it would be a good thing, and make people more rational and benevolent. I also assume such an invention (peace) would be a greater contribution to the human project than another violent revolution. That’s what I work toward.
Because of the government’s violent potential, a pacifist might believe in getting rid of guns, but not by government fiat.
I am also in favor of abolishing nuclear weapons, but I don’t know how, or whether we should do so unilaterally. But whether abolishing our professional military is a good idea or not, it was one of two essential viewpoints that made our constitution.
And neither of these notions are articulated by either side- neither the gun abolitionists, nor the gun freedom advocates. You’re not likely to hear the NRA criticizing the U.S. military, and the “Republican” is really just a party of counterrevolutionary neoconservatives. As for the liberal Democrats, they are supposed to be the party that favors international peace and relief for the poor, but they too often run pro-Wall Street foreign policy hawks for president (and maybe next, even another billionaire).
I say a pox on both of their houses- but as far as innocent young people are concerned, we should spare no effort to spare them from the world’s brutality.
The vision of the 18th century “republicans” is not present in either major political party. In order to break the duopoly, we have to be willing to risk everything- by refusing to compromise, we run the risk of electing Trumps. In my view, we need a strong voice in our national polity that opposes our foreign policy and believes that we have a right to revolution, the way an 18th century “republican” would.
One way to restore the Right to Revolution: amend the constitution to abolish the police, and to prohibit our military from being within the borders of the United States.
Conclusion
On the other hand, if society concludes that the Second Amendment is no longer workable, and we want to abolish the right to violent resistance and revolution, we should decide whether we need to do other things to recalibrate the machinery of the Constitution to assure a mix of liberty and security.
Without a real Second Amendment, what other constitutional protections could we possibly add that could ever replace a body politic united by love and virtue and capable of subduing evil without turning to the state for intervention?
Would you change the Second Am? If so, how?
In my opinion, it is unnecessary to do what Stephens says and repeal the Second Amendment, because according to Heller and McDonald, the personal right to self-defense under the Second Amendment is actually much more limited than our statutory gun laws.
Nonetheless there are other mismatches between the Second Amendment and our society, and we should reform both the Constitution and society.
Notes:
1 “To Repeat: Repeal the Second Amendment,” B. Stephens, New York Times, Feb. 16, 2018. https://www.nytimes.com/2018/02/16/opinion/repeat-repeal-second-amendment.html . This was actually the second time Stephens had made the argument; the first time was on Oct. 5.
2 “What about another 17 murdered souls, and their classmates and families, and the inability of today’s conservatives to offer anything except false bromides and empty prayers?” Id.
3 District of Columbia v. Heller, 554 U.S. 570 (2008). McDonald v Chicago, 561 U.S. 742 (2010).
4 “The Interactive Constitution: The Second Amendment’s meaning,” National Constitution Center staff, February 19, 2018.https://constitutioncenter.org/blog/interactive-constitution-the-second-amendments-meaning
5 “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.”
6 See, for example, Vermont Constitution, 1777: “That the People have a Right to bear Arms, for the Defence of the themselves and the State: -And, as standing Armies, in the Time of Peace, are dangerous to Liberty, they ought not to be kept up; and that the military should be kept under strict Subordination to, and governed by, the civil Power.” See also other contemporary state constitutions. http://constitutionalrights.constitutioncenter.org/app/home/writing
7 US CONST., art. !, s. 8, clause 12: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years[.]”
8 “The Embarrassing Second Amendment,” S. Levinson 99 Yale L.J. 637 (1989). https://www.firearmsandliberty.com/embar.html
9 “War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms,” E. Scarry, 139 U. Pa. L. Rev. 1257 (1991).
10 “The Revolutionary Second Amendment,” B. McIntosh, 51 Ala. L. Rev. 673 (2000). Levinson (note 9 above) says that small arms alone would be sufficient to prevent the government from becoming tyrannical; McIntosh, on the other hand, says that the capabilities permitted by small arms would be sufficient for people to exercise the “right of resistance,” but not good enough to exercise the “right of revolution.”
11 “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,” D. Williams,
101 Yale L.J. 551 (1991).
12 “I know what the objections to this argument will be. What about John Locke and Cesare Beccaria? What about the preservation of American liberties and the encroachments of bureaucratic liberal despotism? Right.” Stephens, n. 1, supra.
