Though unpopular, some restrictions must be imposed on our Second Amendment right to bear arms
By Barry Gordon 01/23/2013
Here’s an idea: What if there were no Second Amendment to the US Constitution?
Now, before you throw down the paper and run to load your high-capacity magazine pitchforks, let me explain. I’m not saying that we should now get rid of the Second Amendment. It exists and I believe we have to live with it and respect it. And while I have serious doubts about the US Supreme Court’s interpretation of the amendment, declaring an individual’s right to own a gun, I nevertheless am willing to respect that as well. Let’s engage in a thought experiment: What if the founders never put the Second Amendment into the Bill of Rights in the first place? How would our society be different?
First of all, I’m not sure that America would be much less of a gun-owning society than we currently are. The history of pre-Revolution tyranny would still run deep in our veins, and I’m hardly convinced that people wouldn’t still be gathering somewhere in Idaho in compounds, waiting for the government to confiscate all privately owned firearms. As the ancient Buffalo Springfield song says, “Paranoia strikes deep.” The one difference, however, would likely be that the firearms would not have been acquired legally on the open market, since common sense may have led us long ago to conclude no single individual or group should be entitled to build up a massive arsenal.
I personally don’t believe that the absence of the Second Amendment would lead to the government confiscating all private weapons. The uproar from the populace would simply be too great. We are a democracy, and the only way we could take everyone’s gun away would be to change the very nature of our government and become a dictatorship. The more likely scenario is that Americans would support an individual’s right to own a gun, just as they have a right to own a car or a house or anything else. While wing-nuts like Alex Jones may warn that the Nazis and the Reds went after guns as a first step to tyranny, he seems to miss the point. We are not a totalitarian society. So the greater likelihood is that we would preserve an individual’s right to own firearms for hunting or self-protection.
Of course, there would be changes. Just as the government can keep people from smoking in certain places, there would be some common-sense restrictions on the types of firearms and ammunition clips that could be privately owned, where and when guns could be carried outside the home and who would be entitled to own one. What is often forgotten is that restrictions such as these were commonplace up until the last 30 years or so.
Without the exaggerated protection of the Second Amendment, gun manufacturers would also be required to meet some basic requirements. Just as we’ve fitted our automobiles with safety belts, we might require trigger locks or even some high-tech gadget that permits only the gun owner to fire the weapon. And law enforcement agencies might weigh in and require additional tools to aid in tracking down criminals, such as universal gun registration and stringent background checks. None of these measures would infringe on the rights of mentally competent, law-abiding individuals to own guns. But it would certainly speed up the police’s ability to identify the owner of a weapon used in a crime.
Would there be a larger black market for legally banned weapons? Probably. The difference, however, is that law enforcement can shut down an illegal gun market without infringing on the lawbreaker’s constitutional rights. I know the argument that a government cannot effectively make illegal something that everyone wants. I understand the lessons of Prohibition and the ineffectiveness of the war on drugs. That’s why I would imagine that ownership of most firearms would remain legal. Again, common sense would have to prevail.
Finally, if there were no Second Amendment, we wouldn’t have to suffer through the tortured and fairly bizarre reasoning of some Supreme Court justices who have attempted to interpret the amendment. In an appearance on FOX News, Justice Antonin Scalia opined that the phrase “keep and bear arms” might restrict some weapons that can’t be “borne” or carried by an individual, like a cannon. On the other hand, he said that something like the right to “bear” a hand-held rocket launcher would have to be “decided” by the court. Really? Why should that even be a question?
So ends my little thought experiment. Except to say that I believe all of the sensible measures I mentioned should be possible, even in light of a constitutional right under the Second Amendment. As long as we’re being originalists like Scalia, the Second Amendment does not say that an individual has a right to keep and bear “any kind” of arms anywhere at any time. And when one thinks that there were tremendous efforts made to keep those arms out of the hands of whole groups of citizens, such as black people (one of the original missions of the Ku Klux Klan after the Civil War), we can’t help but see a double standard at work.
As law professors often point out, no constitutional right is absolute. If we can place limited restrictions on the First Amendment, why should the Second Amendment somehow be more sacred? The obvious answer is that we can and should impose restrictions.
Barry Gordon is an adjunct professor at Cal State, LA.