The Second Amendment: Why Must Guns Define America?

by | Jun 5, 2022 | Opinions

Photo by What Is Picture Perfect

The Second Amendment: Why Must Guns Define America?

by | Jun 5, 2022 | Opinions

Photo by What Is Picture Perfect
The 27 words of the Second Amendment are among the most bedeviling words of the U.S. Constitution: “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.”

And so here we are again. Another school shooting. The American slaughter of innocents. Shattered lives, shattered communities. The massacres pile up — Columbine, Blacksburg, Roseburg, Sandy Hook, Parkland, Uvalde and literally hundreds more. Aurora, Las Vegas, Orlando, El Paso, Fort Hood, San Bernardino, Sutherland Springs, Boulder.

And so we ask: When’s it going to stop? What can we do? Is this who we are?

Is this America?

A Bad and Ugly Phenomenon

My question is: Is there anything that a humanities scholar can offer to this discussion that is in any way useful? Is it possible to have a rational national conversation about the rising tide of gun violence in America? Or are we so profoundly polarized, and especially on this issue, that we just can’t talk about it? Trying to say anything sane about the epidemic of gun violence in America is like walking across Lake Michigan on paper-thin ice, with a mine field and bear traps just under the surface, and sharks circling below. I keep saying “gun violence in America,” because there are no debates about gun violence in Ireland or gun violence in France or gun violence in Japan or gun violence in Germany or gun violence in Denmark.

A 2015 visualization by The New York Times of the number of guns and mass shooters in the United States compared to other countries. (nytimes.com)

There are very occasional mass shootings elsewhere in the world, of course, but we all know that the mass shooting is an American phenomenon. We have always been a violent nation. We were born in revolution. And our national experience was played out along a long series of western frontiers where violence displaced Native Americans, rival miners, nesters, varmints like bears and wolves, and lawless desperadoes. As one Harvard historian has reminded us, firearms got to the frontier settlements of the American West well before the law. We all know this. It’s in our cultural DNA. Shane, The Good, the Bad, and the Ugly. High Noon. Unforgiven. True Grit. The themes resonated so deeply that they lent themselves to remakes decades later.

Movie posters for Shane (1953), The Good, The Bad and The Ugly (1966), High Noon (1952), The Unforgiven (1966) and True Grit (1969). (IMDB.com)

Deaths by gun violence are 100 times more frequent in the United States than in Great Britain. About 35,000 to 40,000 per year here. In most cases there are one or two victims. Which means that these incidents are occurring in every state, every day, in urban America and in rural America, in blue states and red states, in the south and in the north. It’s the mass shootings that get most of the attention, but the daily carnage is appalling.

There are an estimated 390 million guns in America. That’s 1.2 guns for every American man, woman and child. Since 30 percent of Americans say they own no guns, some percentage of those who do possess arsenals.

Here But Not There

Our first cousins to the north, the Canadians, are just like us in almost every way. They drive the same cars, eat many of the same foods, speak the same language, watch many of the same movies and television programs, read many of the same books. But because they have moderately rigorous gun laws, death by gun violence is eight times lower in Canada than in the United States, just below that 5,525-mile invisible border.

Canadians hunt. Canadians belong to skeet clubs. They go target shooting. Canada is so much like us and so close to us in geography that it is the best mirror we have about what is distinct about the United States. And so we have to ask: With their more restrictive gun regimen, are the Canadians less free than we are? Are they less secure in their homes? Are they less happy? The answer to these questions depends on whom you ask. If we adopted some of Canada’s gun restrictions, what would we lose that is essential in the American character and identity? The answer depends on whom you ask.

Here the mass shootings pile up, half a dozen per year or more, and the national ritual is invariably the same. The media descends on the community. Survivors express their bewilderment, their agony and their anger. The police explain their response protocols. The Democrats call for gun legislation. Most of the Republicans say “now is not the time” for this conversation, now is the time to pray for the families. The president, if he is a Democrat, says, “How many times are we going to go through this ritual before we do something about it?” And the president, if he is a Republican, says, “There are plenty of gun laws on the books already. We should enforce them.” And “we need to attend to mental health needs, not blame guns.” After the funerals, after all the tableaus of candles, wreaths, flowers, photographs, placards, posters and stuffed animals at the kill sites, the media packs up and goes back to New York or L.A. Legislation is introduced in Congress. Where it stalls.

And then, in a month, or in six months, or in a week, there is breaking news …

On Oct. 5, 2017, at the East Las Vegas Community Center in Las Vegas, a vigil commemorates the victims of the Route 91 Harvest Country Music Festival mass shooting (Jason Ogulnik/Flickr)

At some point we are going to have to have a rational national conversation about guns and gun violence in America. You might have thought it would already have come, given the steady upsurge of mass shootings. You might have expected it after Sandy Hook, where 26 were killed, most of them between six and seven years old, on Dec. 14, 2012. Or after the Orlando Pulse night club shooting on June 12, 2016, where 49 were killed and 53 wounded. Or after the Las Vegas Route 91 Harvest music festival shooting on Oct. 1, 2017, where 61 were murdered and 867 injured, more than 411 by gunfire. Or after the Parkland school shooting on Valentine’s Day 2018, where 17 were killed and another 17 wounded. Or now after Uvalde, 21 killed, most of them fourth graders who were learning their times tables or making a mess with school paste.

When Political Narratives Fail Us

But we appear to be impotent in the face of this problem. Those who are gun defenders, Second Amendment champions, seize up the minute someone initiates the conversation. I am quite sure some who are reading my words above are already angry, even though I have tried — with the utmost caution and anxiety — to say nothing that is not incontestably true about gun violence in America. The Second Amendment lovers have come to believe that any restriction on guns in America — such as bump stock bans, or extended magazine bans, or universal federal background checks, or so-called Red Flag laws — represent a “slippery slope” that will inevitably end in gun registration and gun confiscation.

A Few Careful Propositions and a Bit of History

A Springfield Armory Pattern Piece Model 1822 Flintlock Musket – AF*222276. According to the Washington Post, a “typical Revolutionary-era musket” had a one-round magazine capacity, and could fire around three effective rounds per minute – in the hands of the most skilled wielder. Its maximum accuracy range had to be within 50 meters. (Ranker.com/Wikipedia)

Proposition One: Define Weapon. When the Second Amendment was written in 1791, a high-tech weapon was a single-shot musket or rifle that took between 30 and 60 seconds to reload. A competent shooter today using widely available weapons and extended magazines can squeeze off 1,500 or more shots in seven minutes. How many bullets would have been fired, how many students killed at Columbine or Uvalde or Las Vegas or Orlando if the shooter had had to stand his rifle upright, pour a bit of gunpowder down the barrel, put a piece of cloth around the round bullet, ram the bullet down to the bottom of the barrel with a ramrod, replace the ramrod in its slot under the barrel, and then put a bit of gunpowder in the pan, before firing bullet No. 2? The staggering increase in efficiency, accuracy and lethality of firearms (from six shooters to AR-15s) between 1791 and today is so dramatic that at some point this vast tech transformation came to represent not just a difference in degree but in kind. Would James Madison, the author of the Bill of Rights, have been able to recognize a 9mm handgun? What would he have said of its lethality? Was the Second Amendment designed to protect an America citizen’s right to that much firepower? I’m not presuming an answer to this question, but it is a question that deserves to be debated.

Proposition Two: Define ‘Well Regulated.’ Historians are not quite sure what the Founding Fathers meant to protect with the Second Amendment. The provisions of the Bill of Rights were not very seriously vetted in the First Congress of the United States. “The People” had made it clear that they wanted a Bill of Rights as their compensation for ratifying the strong new Constitution of 1787. James Madison was not convinced that a Bill of Rights was needed or useful, but he dutifully gathered up proposed amendments from around the 13 original states, sorted and clarified them, presented them to Congress, and walked their adoption through the congressional process. After only cursory debate, the First Congress passed the Bill of Rights mostly as a political gesture to quiet public discontentment about the new Constitution. If the debate over the Bill of Rights had been more rigorous, we might have a better idea of how to interpret the Second Amendment (among others).

The 27 words of the amendment are among the most bedeviling words of the U.S. Constitution: “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.” That comma in the middle, separating the subordinate clause (a well regulated militia being necessary) from the main clause, “the right of the people to keep and bear Arms shall not be infringed,” also separates two seemingly distinct purposes. We know that many of the Founding Fathers were deeply concerned about the danger of standing armies. Keen students of history, they knew that standing armies (i.e., permanent military establishments) have, in history, often turned on the very citizens they were meant to protect and that they have been used, historically, by runaway kings and dictators to fight wars without the approval of representative bodies (such as the Roman Senate). The founders were insistent that they wanted to leash the dogs of war in the American republic. The Second Amendment was designed to make sure the people had their own firearms so that they could participate as minutemen in a people’s army, a militia, to protect their homes and homelands from outside aggression. That’s the burden of the subordinate clause.

But the main clause appears to be a kind of legal absolute. By itself it is unambiguous: “the right of the people to keep and bear Arms shall not be infringed.”

Those who wish to see restrictive gun legislation need to remember that the founders, having written the Constitution in the summer of 1787, then constructed and ratified a list of American rights so important that they needed an entirely separate document, an explicit and contiguous articulation of the human rights that the national government must not tamper with. In other words, the Founding Fathers wrote the Bill of Rights to enumerate certain rights that were so essential that they deserved full Constitutional protection, not just routine legislative support. Among these are the right not to incriminate oneself in a court of law (Fifth Amendment), the right to a trial by jury (Seventh Amendment), the right to worship the God of your choice, or none, without civil reward or civil penalty (First Amendment), the right to be protected against cruel and unusual punishments (Eighth Amendment). And the right to keep and bear arms.

The Second Amendment belongs to this category of specially protected American rights. Even if we are not quite sure what exactly the founders intended with the Second Amendment, they said in plain English that the right of the people to have their own weapons “shall not be infringed.” Whether you like the Second Amendment or hate it, believe widespread gun ownership in America is a blessing or a disaster, there its Constitutional guarantee sits, right smack in the heart of the Bill of Rights. We all know that no right is an actual absolute — there are times when freedom of speech must be somewhat curtailed — but it is important for us all to remember that every provision of the Bill of Rights is at least a near-absolute. And if we believe that the country is being destroyed by an epidemic of gun violence, we are going to have to address the problem very cautiously and respectfully by way of routine legislation, unless we find the national consensus to pass a clarifying or counter amendment to the Constitution. Many on the left side of this debate would like to overlook the potency and authority of the Second Amendment, but that doesn’t make it go away.

Proposition Three: Define Rights. The Constitution was not a suicide pact. No matter how much we respect or revere the Second Amendment, we cannot let it destroy the social fabric of America. An enlightened people finds a way to address and resolve the fundamental issues of their society: immigration, health care, inequality of income and opportunity, global climate change, and the unique American mayhem of gun violence. We can respect but we cannot hide behind the Second Amendment. For some significant percentage of the American people, the Second Amendment is a kind of fetish. I have met individuals on the Great Plains who declare, sometimes at the top of their lungs, that the Second Amendment is not only the most important article in the Bill of Rights but that it is more important than the Constitution itself. I freely admit that I don’t understand this mentality, but it is real, it is widespread, and they mean what they say about their cold dead hands. We regulate other lethal things in America life: automobiles, airplanes, pollutants, fireworks, drugs, dogs. We are going to have to find a way to prevent school shootings, concert shootings, nightclub shootings, mall shootings, domestic shootings, and we are going to have to be very imaginative in doing so in a way that does not cancel or eviscerate the Second Amendment. Surely a rational people can find a way. But nobody should pretend that it won’t be exceedingly difficult.

Proposition Four: Define Defense. Ask yourself this. If James Madison or for that matter Patrick Henry or Ethan Allen or Thomas Jefferson or George Washington could drop in to observe the routine gun violence of America today, how would they respond? What would they propose? Do you think they would throw up their hands and say, “well, not much to do about it given the Second Amendment?” If they could have seen then where weapons technology was headed, would they have crafted the Second Amendment as it stands? If they had understood then that by the mid-20th century the United States would have no “well regulated militia,” but instead a vast, incomprehensible “standing army,” costing about a trillion dollars per year, an army, navy, air force, coast guard, space guard, and much more, including the national security state (CIA, NSC, FBI, DIA, etc.), would they have written the Second Amendment?

Only three nations protect the right to keep and bear arms in their constitutions: Mexico, Guatemala and the United States. The United States ranks second in the world in gun violence (after Brazil), Mexico fourth, and Guatemala eighth. As we brace ourselves for the next mass shooting, this should make us pause and think.

Republished with permission from Governing Magazine, by Clay S. Jenkinson

Governing Magazine

Governing Magazine

Governing: The Future of States and Localities takes on the question of what state and local government looks like in a world of rapidly advancing technology. Governing is a resource for elected and appointed officials and other public leaders who are looking for smart insights and a forum to better understand and manage through this era of change.

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