Browsing the blog archivesfor the day Saturday, December 22nd, 2012.


Random Thoughts on the 2nd Amendment

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Obama Administration

I have long thought that someday gun violence could create a backlash to 2nd Amendment absolutism and touch off a movement to amend the amendment. I don’t think we’re there yet, but we’re going in that direction.

There is an understandable reluctance to mess with the Bill of Rights. Recent polls show somewhat more support for gun control than for gun rights, however. And as I wrote recently, the percentage of U.S. citizens who keep guns in their homes has been drifting downward for decades. If current trends continue, at some point a big enough majority will conclude that gun rights absolutism is a public menace that can no longer be tolerated.

Of course, current trends will not necessarily continue. If the gun rights absolutists had the sense God gave refrigerator mold they would get behind regulations that, say, limit magazine capacity and close the gun show loophole. That might appease enough of the public to at least postpone a day of reckoning, possibly indefinitely.

However, going by Wayne LaPierre’s bizarre performance yesterday, they don’t have that much sense.

What may be needed eventually is a constitutional amendment clarifying the 2nd. The current SCOTUS to the contrary, if one simply looks at the real history of guns in America, one sees that the notion that the 2nd prohibits government regulation of firearms is a relatively recent conceit, even for the NRA. See, for example, “The Secret History of Guns” by Adam Winkler. For more on how far the gun rights crowd has drifted from any original intention of the Constitution, see “So You Think You Know the Second Amendment?” by Jeffrey Toobin.

Sometimes clarification is needed. The 16th Amendment, for example, did not so much amend the Constitution as it did clarify that a tax on income in an indirect, not a direct, tax, and arguably it always was an indirect tax except that in Pollock v. Farmers’ Loan & Trust Co. (1895) a majority of justices said it wasn’t. And I’m saying the 2nd doesn’t have to be repealed, but it does need to be clarified so that the power of state and federal governments to regulate firearms is restored to what it used to be. A clarifying amendment couldn’t get ratified by enough states now, but I could see it happening in another generation or two.

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