Strict Construction, Gun Violence, and the Second Amendment

January 10, 2011

The assassination of a federal judge and attempted assassination of a congresswoman, along with the killing of several “civilians”, once again brings to the fore the issue of gun violence and the Second Amendment.  This is especially true now that the Supreme Court majority has applied so-called “strict constructionism” to find that the Second Amendment protects private gun ownership from almost all federal and state regulation.

Justice Scalia, one of the court’s more vocal advocates for strict constructionism, argues that the Constitution’s interpretation can’t change with the times.  According to him, if circumstances change, the answer  is to amend the Constitution accordingly.  By that standard, it appears the time is overdue to amend the Second Amendment.

Back when the Constitution, and specifically the Second Amendment, was written, the primary firearm was the flintlock musket, an inaccurate, short-range, and slow-to-load single-shot gun.  There were also handguns, but they were dueling pistols and the like — again inaccurate, single-shot, and clumsy to use.  Contrast that with the ten bullet clip-carrying semiautomatic pistol used by last Saturday’s assassin, or the Uzi or M-16 type assault weapons favored for gang violence, or, for that matter, the extremely accurate multi-shot high-powered rifle used to assassinate John F. Kennedy.  There’s no comparison.  Indeed, once could argue that they shouldn’t even be described by the same word, and that “arms” as used in the Second Amendment had an entirely different meaning than the guns, IEDs, and other weaponry available to conduct modern-day violence.  Nevertheless, Scalia, the NRA, Teapartiers and their ilk insist that the Second Amendment allows free rein to gun-toters. 

Given the results of last Saturday, and looking abroad to places like Pakistan and Afghanistan, where assassinations are becoming an almost daily occurrence, the question is, isn’t it time we amended the Second Amendment?  Sure, maybe a single-shot hunting rifle or a BB gun doesn’t need regulation, but an AK-47 or semiautomatic handgun is an entirely different story.

If people like Scalia are sincere in their assertion that the proper course of action when the Constitution no longer works well is to amend it, it’s time for him, and those like him, to get behind a movement to amend the Second Amendment to assure that the kinds of weapons that can cause mass-mayhem aren’t easily available to would-be assassins.

While we’re at it, it’s also long past due to take into account the changed nature of the media and of election campaigns.  The Supreme Court’s Citizens United decision of last year practically turned the U.S. political system over to corporate control.  We really do need an amendment to recognize that the nature of political campaigning has fundamentally changed.  Unregulated campaign spending might have been perfectly OK in the confines of the thirteen original states, where almost anyone could afford to run off a broadside and have it hand-distributed by volunteers.  In this era of TV and radio ads, mass-mailings, focus groups, and psychologically attuned campaign consultants, however, it is increasingly true that we have been trapped by the “golden rule” — Those who have the gold make the rules.  That certainly wasn’t what the writers of the First Amendment envisioned.  If it takes a Constitutional amendment to bring power back to the people, then we need to get started on that process.

One last thought on Scalia and his strict constructionism friends:  The writers of the Constitution were not gods.  They were men coming from divergent situations attempting to cobble together a working structure for a national  government.  The Constitution includes numerous compromises reached to accommodate the differing view of the powers-that-be in different colonies.  Those compromises, and the reasons behind them, have now been well-documented.  While some of the divergences continue to exist — e.g., between large population and small population states, between urban and rural states, others, such as those associated with slavery, have long-since vanished.  Further, we have, over time, come to realize that some of the Constitution’s structures and procedures were neither functional nor fair.  Some of the worst of these, such as having Senators chosen by state legislatures, have been corrected.  That doesn’t mean, however, that we need to accept the current Constitutional structures and procedures as God-given mandates carved in stone.  Indeed, after almost two and a quarter centuries, maybe it’s time to consider a new Constitutional Convention. … Just a thought.

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