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Repeal the 2nd Amendment

The United States has experienced yet another mass shooting, this time in Nashville, Tennessee at a religious school. Six people died and the killer carried two assault-style weapons and a handgun. As always, the nation will go through another period of impotent “thoughts and prayers” as its citizens will debate the meaning of the 2nd Amendment.

The 2nd Amendment reads: “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.” It is a poorly written amendment, subject to all sorts of weird interpretations. When it was being debated in 1789, its intent was clear. The citizens at the time were tremendously suspicious of a standing army since their experience as colonial subjects proved to them that standing armies, maintained by a powerful state, represented a threat to liberty. The writers of the constitution therefore wanted the common defense to be maintained by state militias in order to fragment centralized military control and assumed that militias would only be called upon when there was a specific threat to be addressed. The Massachusetts Declaration of Rights adopted in 1780 gives a rough idea of what the concerns were: “The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.”

The most important dimension of this concern was the fear of a powerful state. To that end, the states were not expected to arm the militias. Instead, every citizen was expected to bring their own weapons when the militia was called upon. The “original intent” of the 2nd Amendment was to assure that states never developed their own weapons-producing capabilities.

This meaning of the 2nd Amendment has been lost and its tortured language is currently interpreted by the US Supreme Court as a right of individuals to possess weapons even though the states now buy weapons for their militias (in the US, the National Guard) and the Federal Government regularly purchases weapons to arm the various branches of the US military. Indeed, soldiers in the US military are not allowed to use personal weapons when they are officially deployed in combat. The reasoning behind this prohibition is obvious: massed armies require standardized equipment so that it is easier to provide the necessary training, ammunition, and maintenance of weaponry. And very few citizens could afford to buy their own modern weapons.

The Militia Act of 1792 makes it clear that citizens were expected to provide their own weapons:

“That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good How to be musket or firelock, a sufficient bayonet and belt, two spare flints, and a armed and ac- knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder”

This interpretation of the 2nd Amendment was washed away in the Supreme Court’s decision, District of Columbia v. Heller in 2008. The decision was 5-4 and the Majority Opinion was written by Justice Antonin Scalia. That Opinion was summarized as follows:

“To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to ‘guarantee an individual right to possess and carry weapons in case of confrontation.’ This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.”

The Supreme Court went even further in its decision New York State Rifle & Pistol Association, Inc. v. Bruen in 2022 and the Majority Opinion was written by Justice Clarence Thomas. In that opinion , Justice Thomas argued that all gun control legislation needed to be assessed in a manner “consistent with the nation’s historical tradition of firearm regulation.” I personally have no idea what that phrase means. What is the “historical tradition” relevant to an AR-15? It only became widely available in 1963 when the Colt Manufacturing Company sold it to civilians.

The interpretations of Heller and Bruen are hypertrophic and have no logical connection whatsoever with the original intent of the 2nd Amendment. To equate the right to carry an automatic or semi-automatic weapon in a public place to the right to speak freely or to assemble peaceably is dishonest nonsense. Indeed, the right to speak freely is itself limited to speech that does not incite violence. And the invocation of “original” intent is itself nonsense. The “original intent” of the Constitution was to codify and normalize the kidnapping and enslavement of millions of people. The “original intent” of the Constitution was to deny women the right to vote. Fortunately, the people of the United States decided that slavery was completely inconsistent with the true aspirations of the Constitution and that the voices of women in governance was essential to a well-functioning democracy. One would be hard-pressed to argue that the slaughter of innocents was consistent with the ideals of “domestic tranquility“.

We should repeal the 2nd Amendment since its current interpretation apparently only allows “thoughts and prayers” for those who are mindlessly killed and for those who have lost loved ones. And we should examine seriously the health of a society which holds that children should be protected only by participating in “active shooting drills”. That advice resonates strongly with me as I remember huddling under my wooden desk in 3rd grade as adults tried to persuade me that it was an effective defense against a nuclear blast.

The repeal of the 2nd Amendment would leave a vacuum with respect to gun policy. Much would have to be done to fill that vacuum, but I only offer one suggestion on the issue of automatic and semi-automatic weapons. I want to avoid the inevitable controversy over the possible “confiscation” of guns. That policy would never work and would simply aggravate the untenable situation in which we find ourselves. Instead, I suggest a Federal law along the following lines;

1. The sale of any weapon with an automatic or semi-automatic firing mechanism will be prohibited.
2. Citizens can possess such weapons but they can only be held on the property of the primary residence of a citizen.
3. The carrying of an automatic or semi-automatic weapon in a public space will be prohibited and any such weapons found in a public space shall be confiscated and destroyed.

We can debate background checks or the mental health requirements on all other weapons at a future point. But there is no reason why the burden of proving an acceptable solution to gun violence should be borne exclusively by those who want the weapons to be controlled. The burden should more appropriately be borne by those who insist that they have a “right” to possess military-grade weapons. They should be forced to defend that right in the face of all the horror and instability that society faces every day and with stunning regularity.