Repeal the Second Amendment?

January 10th, 2011

Mike Sacks has a post titled The Second Amendment: Ramifications of Repeal. Mike argues in part that the tragic shooting in Arizona may create a groundswell to repeal the Second Amendment:

The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th16th, and 17thAmendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A).

Mike discounts the historical pedigree of Scalia’s opinion, and relies on, among other things Chief Justice Burger’s view that the Second Amendment is a collective right. I won’t wade into the historical debate here. Needless to say, CJ Burger isn’t topping the list of any citation counts on the 2nd Amendment. Though he did a whiz-bang job on the Bicentennial of the Constitution. I digress.

Here is the most interesting part of Mike’s eloquent post:

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment. In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

In other words, if the Second Amendment was repealed, Mike suggests that some of the 100 million American gun owners would do their best Chuck Heston impression and scream from the rafters “From my cold dead hands.”

First, a note on the timing of this post. The shootings in Arizona were tragic and unfortunate. They happened very recently, and are fresh in our minds. I caution, generally, any legislative or legal responses to problems in the heat of the moment. Eugene Volokh blogs about a legislator who seeks to pass a law banning the use of bullseyes or crosshairs that can be perceived as threatening public officials. As Eugene notes, this is almost certainly unconstitutional. However, the constitutionality of this bill probably never ever crossed the mind of the representative. It goes like this: Something bad happened recently: I have an idea how to fix it right now: let’s strike while the iron is hot: QED.

Mike writes:

But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

This is sensationalism at its worst. Patience. In fact, I would quibble with this assertion. Rather than a “steady stream,” this shooting represents what is effectively an isolated incidence. One of the primary contributors to its horrificness is the fact that, well, it is shocking! And it is shocking because these kind of things just don’t happen very often in our country. The fact that we can identify some of the biggest shootings (Columbine, Virginia Tech, etc.) is a testament to how rare they happen. I am not attempting to trivialize or marginalize the depravity and cold-blooded murder in Arizona. I simply caution a rush based on what is really an isolated incident.

Second, a note about the effectiveness of rash legislation. Laws passed in haste (think of the Patriot Act?) are often regretted shortly thereafter. No one knows enough about this case yet to make any informed judgments about how the shooting, and whether certain gun control laws could/would have prevented it. It seems he has been planning this for 3 years. Even with the most draconian gun laws, a person so motivated can obtain a firearm on the black market. However, this won’t stop legislators from running with this issue and making hay about it.

Third, to Mike’s broader point about the McDonald paradox, I will quote at length from Judge Kozinski’s dissent in Silveira v. Lockyer:

But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 15 L.Ed. 691 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. 570*570 Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 578-579. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

Kozinski, who grew up and escaped a totalitarian government knows a thing or two about oppressive government. Mike characterizes the repeal of the Second Amendment as if it were the repeal of, say, prohibition. Eh, no biggie. I disagree. This is a damn important right.

As I have argued in a series of posts, and an article that is shaping up nicely, the Second Amendment is not our only dangerous right. Many rights, including criminal procedure and First Amendment rights that the Heller dissenters champion are quite dangerous. If we were to start repealing amendments whenever they were dangerous, we would be in a sad state.