Second amendment stream of consciousness

It’s almost impossible to be politically aware these days and not think much about guns and the second amendment. Support for second amendment rights is almost a shibboleth for somebody’s standard as a true conservative, and support for gun control laws is nearly ubiquitous among liberals. This has been a topic of discussion/debate many times in my spheres, and I’ve had a fair amount of time to think about issues related to guns and the second amendment. Given the renewed interest in the topic after the awful attack on republican members of Congress (at baseball practice), I thought I’d put some of my thoughts down, as disorganized as they may be. So here goes, in no particular order.

I’m not a gun lover. I don’t own guns. At the same time, I’m not too bothered by guns, and when I’ve shot guns, I’ve found it fun. So I don’t consider myself particularly pro- or anti-gun. That said, I do love the second amendment, but from an intellectual standpoint. It’s a fascinating amendment for a bunch of reasons. First of all, and this is a common misconception, the second amendment does not establish the right to bear arms. It simply doesn’t, not anywhere in the text. Let’s look at the text to be sure:

Amendment II

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’s not surprising that it doesn’t establish the right to bear arms because none of the amendments in the Bill of Rights do that. This is consistent with the concept of rights. These rights are things we’re born with, and have from the start. Government can limit them, or try to take them away, but that’s the kind of tyranny that the United States was set up to avoid. So the Bill of Rights doesn’t give us rights, it specifies which rights the government is not allowed to take away. When we read the second amendment, it assumes the existence of the right, and says the government shall not infringe that right. But here’s where it’s different from all the others: it has a conditional clause. It says that the government shall not infringe the right to bear arms, because a well regulate Militia is necessary for the security of a free state. No other amendment has a condition attached to it. The first amendment doesn’t say that the right of people to peaceably assemble should not be infringed because free speech is critical for a thriving democracy. It just says that Congress can’t make laws abridging the right of people to assemble. But the second amendment gives a reason why the right to bear arms shouldn’t be infringed.

So what if the condition isn’t satisfied? What if a well regulated Militia isn’t actually necessary to the security of a free state? What if we can maintain the free state without a Militia of any sort? What if a standing army is sufficient? When I use an if-then statement, the “then” part doesn’t happen without the “if” part. “If I am bad, I will be punished,” means that if I am not bad, I will not necessarily be punished. I may still be punished, but the need to punish accompanies the condition, “if I am bad.” Does that mean that if or when we create a country that does not require a well regulated Militia to guarantee the security of a free State, it becomes OK to infringe the right to bear arms? I don’t know, but it sure seems that way to me.

But that’s not the only question I have about the literal text. Another question that’s crossed my mind is this: how many arms does one need to have the right remain intact. It says “arms,” the plural form, so I gather it’s more than one, but how many. Given that the document doesn’t provide the right, it seems pretty unhelpful for the document to not expand upon this question, but it doesn’t. It just says “arms,” and we’re left wondering, well, I’m left wondering. This all could be too esoteric for the rest of you. Nevertheless, from a literal perspective, if the government lets you have a knife and a small pistol, that literally satisfied your right to bear arms (plural), so the rest can be restricted without violating the constitution, right? Somehow I suspect many won’t agree, but I can live with that (mostly because I think a literal read is a bit tough for most of these things anyway).

In reality, if any arms control violates the second amendment, then we’re already past that point. We already forbid ownership of rocket launchers, or nuclear warheads, of missiles in general. If those infringements are OK, why is it unconstitutional to restrict ownership of pistols? Of bb guns? I guess that’s not a fair and logical argument, because they are different questions. Just because we’ve violated the second amendment by passing a law saying that people can’t own a bazooka, that doesn’t mean we should violate it again by making bb guns illegal. But, given that this was intended to be a stream of consciousness, I’m not insisting I follow logical flow anyway.

In the spirit of jumping from one thought to another, what about the strong public support for prohibiting gun ownership by people with a history of violence? That seems totally reasonable in some ways, but, like most things, it’s not simple. If somebody commits a violent act, and they are punished by prison time, is it reasonable to further punish them by a life sentence when it comes to other rights? Do we tell people that they can’t protest peacefully if they’ve been convicted of a crime? Do we tell people that their house can be searched, without probable cause or a warrant, just because they’ve been convicted of a crime? This wouldn’t be the only time we do this though. Voting rights are taken away from some people after a felony conviction. There are state-by-state differences on this, but it’s not unprecedented. Some states have different rules for different types of felonies, so it wouldn’t be unprecedented to take away gun ownership rights based on the nature of a crime. Still, something to think about for those of us interested in making sure that the justice system pays attention to its role in reformation as much as (or more than) it focuses on punishment

Changing topics again, what about the influence that the NRA has on this whole discussion? It seems clear that they are an important voice, and have tremendous influence. Some say that taking money out of politics would help prevent this kind of tipping of the scale. I think it’s a good thing to try, but I’m not sure it would work. If it were really all about money, couldn’t the NRA’s money also influence democratic party members? Why does the money only work on the republicans? The same could be said for union support. If it were all about money, why couldn’t the unions buy republican votes. Why does that lobbying only work on democrats? That makes me question the idea that money is that big of a factor. I think money can prevent wavering, and get in the way of compromise, so I still favor restricting it from politics, but I’m not sure it changes a fundamental view on an issue.

So, if taking money out of politics won’t work (as I see it), and we don’t want the government in the business of taking away joy that some people have in something (guns included), but we want to do something to have fewer guns on the streets, and fewer guns in the hands of people who could hurt others, what do we do? About a decade ago, I had a thought. A thought that’s pretty worthless because I’m in no position to do anything with it, but it’s still a thought. I bring it up from time to time on social media when the topic comes up, and people seem to like it (although some think it’s a little silly), but here it is: Pass very strict federal gun laws that outlaw most types of firearms. Have some allowed for home protection and for hunting, and of course law enforcement and military can be very well armed, but the rest is off limits for personal use. That takes something away from gun owners, which makes them sad, but let’s give something to them to make up for it. Give them a nationwide network of recreation centers. Stocked to the gills with guns, and, most importantly, guns that aren’t currently legal for personal use. Fully automatic, zillion round per minute machine guns. All useable for a nominal fee and the cost of ammunition, but only at these well designed recreation centers. All guns are equipped with remote control safety devices, so the recreation center staff can disarm them at a moment’s notice, and the safety device automatically engages (maybe even in a way that destroys the gun forever) if it leaves the recreation center. People can even own their own guns, super powerful, currently illegal guns, but they have to store them at the center and they have to be fit with the safety devices that the other guns have. These people would pay a nominal storage fee, and pay for the ammunition. The weapons could be transported by the government from one center to another, again for a fee. The fees would be set to cover expenses, and not generate profit. Of course there are probably plenty of details that need to be worked out, but that’s the general idea. Seems like a good compromise to me…but I’m not really affected by it much, so it’s easy for me to say that.

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