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The Third Flaw in the Second Amendment

9EEFE82C-D60F-4F34-B5DA-CFA2325E40E5I was at a department barbecue in California last summer, where conversation had turned to some recent school shooting, and how gun-control legislation can never be enacted because we cannot get round the Second Amendment. A nonacademic visitor suddenly interjected: “Nonsense. You’ve already done it.”

Several professorial heads turned toward her. “How do you mean, we’ve already done it?”

“You’ve already passed laws limiting the Americans’ ownership of arms. Individuals aren’t allowed to have nuclear weapons. I saw a sign saying this area is a ‘nuclear-free zone.’ There’s your precedent. I doubt if there’s anywhere in America that an individual can own nuclear weapons. It’s probably the same for other kinds of armaments.”

Professorial brows wrinkled. But of course, she was right. The Second Amendment doesn’t mention guns. It mentions bearing arms. Originally that would have meant muskets, which men were expected to own and bring to the service of the state when needed. If the federal government forbade those, then state governors couldn’t raise an armed militia for defense. But today there is weaponry undreamed of by the founding fathers: truck-mounted machine guns, mortars, grenade launchers, heat-seeking anti-aircraft missiles, thermonuclear bombs. Almost nobody thinks individual Americans should be allowed to own such things.

Given the unquestionable fact that certain kinds of weaponry are restricted to the military or the police, maybe ownership of machine guns should be too. Maybe high-power automatic pistols and hollow-point flesh-ripping bullets shouldn’t be on sale to any lonely and embittered college student. It is at least reasonable to think that the founding fathers might have wanted state and local governments to be free to decide such matters.

The vagueness of the “right to bear arms” part makes a total of three terrible flaws in the botched, blundering amendment in question:

  1. It doesn’t clarify whether its initial participial clause adjunct (the bit about well-regulated state militias being necessary) is supposed to define its purpose to be guaranteeing protection of organized state defense forces.
  2. As I remarked in this post, the main clause is also unspecified in a particularly crucial way. It says the right of the people “shall not be infringed”; but by whom? Just the federal government? Or is it really supposed to block every attempt by any state, county, city, or township in the land from passing gun-control laws, regardless of local conditions or the democratic will?
  3. And “bear arms” is radically vague too. It surely cannot be interpreted to apply to any and all weaponry, so what weapons it should apply to is a matter for debate.

I am not suggesting in any way that these observations are novel. Legal scholars have been mulling over the 27 words of this bungled amendment for centuries. It’s a clumsily worded, vague, useless, legal catastrophe that we have no idea how to interpret in the 21st century.

But why am I wasting keystrokes? No linguistic reasoning about the meaning of the amendment will change anything. The National Rifle Association, that nightmare stalking every congressman, senator, president, judge, and sheriff, will continue to frighten us all into sticking with the status quo, which is that any deranged sophomore can obtain weapons to support a campus killing spree.

Last Thursday it was Umpqua Community College, where the gunman, Christopher Harper-Mercer, had 13 legally purchased guns at his disposal (and couldn’t have been prevented from buying them: Oregon is a “shall-issue” state). Next week, perhaps students will be lying under desks begging for their lives on your campus. But no one will lift a finger to stop the roster of similar events from going on and on into the distant future.

I love the freedoms that are constitutionally guaranteed to us Americans by the Bill of Rights, but I believe that in view of the gathering epidemic of slaughter by lonely young men in schools and colleges it is insane not to at least allow localities to experiment with laws limiting or banning the private ownership of guns. As President Obama said the other day, in Britain and in Australia a single really serious school shooting was enough for the government to enact extremely strict gun laws, and the result is that school shootings don’t occur in those countries any more. In America they are commonplace; the Wikipedia listing of them scrolls down for yards.

You may respond that you demand to be free to own guns and you’re not going to let anyone stop you. Fine: You’ll probably get your way. And I’m not here to tell my fellow Americans what they should believe or desire. But don’t tell me that the incompetently worded and triply vague Second Amendment to the Constitution of the United States guarantees your right to have a shed full of automatic weapons, because it just doesn’t. Its 27 mystifying and ill-considered words cannot bear that weight.

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