Mimesis Law
5 August 2020

Why We Shouldn’t Repeal The Second Amendment

Feb. 9, 2016 (Mimesis Law) — Ken Womble wrote yesterday that it was time to think about getting rid of the 2nd Amendment. It’s a bold position. It’s also completely wrong.

Ken takes the position the 2nd Amendment is a failure. He argues we are ignoring this failure and it’s time to talk about banishing this amendment, for the good of the people. Because some people don’t think the 2nd Amendment is as palatable now as the Founding Fathers did back in the day, it might be time to go ahead and get rid of it.

The Constitution leaves people with the power to enforce the rights it describes. I stole this line from one of Ken’s prior posts here at Fault Lines:

But leave it to the Constitution. It grants big rights, but leaves the specifics for us to determine.

Living under the United States Constitution involves an incredible amount of responsibility. Big, big rights. Powerful protections against the type of government we rebelled against to create this country. The further we get from that creation, the more we seem to forget why these rights existed in the first place. They were intended to check government abuse of power. The inability to figure out how to do that is not the Constitution’s fault, it’s our fault.

Weighing the usefulness of the 2nd Amendment by the “problems” it creates versus how much it is “worth” is not how we determine the continued existence of a fundamental right. And it’s going to get rid of all those other rights people love so much, or at least claim to love.

Ken says the 2nd Amendment is different from other rights. It is the only one that grants the right to possess a tool, as opposed to being a procedural right or creating a human right. Ken implies that makes it a lesser right. Which disregards the obvious. Why would the Founding Fathers give us valuable rights to protect us from government oppression of speech, unreasonable searches, unfair trials, and all of the other things the Bill of Rights was intended to do, yet create this weird right that just gives the right to possess a “tool”?

The answer is simple. The 2nd Amendment grants the people of the United States much more than the right to possess a tool. It gives the people a way to protect themselves. From the government or whoever else seeks to do them harm. Ken discards both of these ideas. Because you can’t beat the government. And, of course, for the children.

Our government certainly has a large military presence. They definitely have intercontinental ballistic missiles. They probably have flying death robots. But the idea that the government’s more sophisticated military might will win the day is belied by history.

America was originally no more than a colony of the “empire on which the sun never set”. The British had a powerful military force. They had well-trained, well-armed soldiers who had managed to take over most of the planet. America had a rag-tag bunch of farmers who wanted to be free. America won.

Is it practical to expect that a bunch of deer hunters will fight off a Navy SEAL team? Probably not. But that’s not the point. The point is that the government has to understand the possibility of armed rebellion. Even if the rebellion never occurs, its specter keeps the government in check. This country has the largest military force in the world. That military rarely goes to war. Our enemies understand it might not be worth getting an ass-whipping. Does our government view the armed citizenry the same way? Who knows? But do we really want to see how they will treat an unarmed citizenry? Because it will be too late if our trust in the government is misplaced.

Ken rightfully points out that the right to defend yourself with a gun comes with a complex set of issues. But he claims you have to pick your poison when it comes to gun rights. Either you can remain powerless to protect yourself from threats or you can accept suicide and dead children.

Suicide is easier with a gun. But the problem with ditching a constitutional right on that ground is that suicide is also easy without a gun. Suicide is a complex, and very sad, thing. The idea of someone feeling so hopeless they would prefer to see what lies in the unknown beyond, rather than live another day, is heartbreaking. But should that same person dictate the constitutional right to bear arms? And, if we somehow get rid of all the guns, will that person make a different decision on ending their life?

Children create a tougher argument. What asshole wants to let the children die? But the numbers don’t back up that claim. The Centers for Disease Control keeps track of accidental deaths. The article Ken cites in his post recognizes the numbers aren’t perfect because of limitations on recorded data. But look at the numbers anyway. In the 5-9-year-old age group, firearm deaths are a tiny percentage. The 10-14 age group is similar.

Cars actually cause exponentially more child deaths. Sure, there are plenty of reasons why we can’t compare cars to guns. But if you want to take something away purely for safety, why wouldn’t cars be the natural starting point?

Ken’s final point is that the right to due process and the right against illegal search and seizure protect us from the government, while the right to bear arms fails to accomplish the same thing. The problem with that argument is that it disregards the 2nd amendment while putting the other amendments on a pedestal they don’t belong on.

The right to due process guarantees, among other things, a fair trial. A fair trial in a speedy manner. With an effective lawyer who stays awake the whole time. And a sentence that reflects justice. See what happened there?

How about search and seizure? Does it really protect people from unreasonable police searches? What about the good citizens who had their house raided for nothing? Or the family whose child was disfigured in a drug raid on the wrong house?

None of those rights are particularly effective at protecting citizens from their government. You have to be very naïve to think there is actually a guaranteed fair trial. Or that you really aren’t in danger of an unreasonable search and seizure. But those aren’t reasons to abandon the rights. Instead, they should drive us to work hard on those specifics required to enforce those big rights.

Most people would raise hell if the government came out and said “from now on, everybody gets searched.” In fact, the people might even take up…well, I was going to say arms. But I guess once we repeal the 2nd Amendment we will need to take up something else.

The 2nd Amendment is important. All of the amendments are, but the 2nd is the one under fire right now. These constitutional rights are not instruction books on how to have a perfect society. They represent an ideal. The ideal is freedom.

Most people can’t define freedom, but they know it when they see it. It comes hard in America. It always has a cost. Want free speech? You have to listen to some asshole rant and rave and spew hate. Want to be protected from search and seizure? That dope dealer who got illegally stopped with enough crack to supply every playground dealer on the East Coast? He walks. Want fair trials? There isn’t enough evidence against the neighborhood rapist who you just know is guilty? He goes home a free man.

The 2nd Amendment is just as inconvenient as the rest of them. That doesn’t mean you get to get rid of it. Sure it’s different because it gives the people the right to possess a tool, just like Ken says. But that tool is what we can use to enforce the rest of those rights. That’s the real difference. If a right has to go, the right to bear arms better be the last one.

23 Comments on this post.

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  • Ben
    9 February 2016 at 9:32 am - Reply

    Mr. Kendrick, why does the fact that an Amendment is inconvenient mean we can’t get rid of it? We did it with the 13th.

    Further, I think you and Mr. Womble are both ignoring the text of the 2nd Amendment. The 2nd Amendment neither references self defense or rebellion, but rather a well regulated militia. You are both suggesting or explaining reasons for keeping it that do not reference the actual stated reason for the Amendment.

    • Ben
      9 February 2016 at 9:36 am - Reply

      Edit: Just saw that I wrote 13th amendment, when I meant 18th.

    • shg
      9 February 2016 at 9:36 am - Reply

      As a starting point, the Supreme Court decided the meaning of the text of the Second Amendment in Heller. Arguing that it means what you think it should mean, rather than what they held it to mean, isn’t a good foundation for discussion. You can disagree with the Supreme all you want, but until they put you on the big bench, you don’t get a vote.

      • Ben
        9 February 2016 at 9:41 am - Reply

        You are correct Mr. Greenfield, and I apologize for not researching before I posted. The Supreme Court clearly stated in Heller that the 2nd Amendment protects individuals rights to bear arms for self protection. My criticism on that point was unfounded.

        • shg
          9 February 2016 at 10:26 am - Reply

          No need to apologize. Just trying to keep the issue on track. Your question as to the meaning of the text is certainly a serious one, but for now it’s resolved, for better or worse.

  • Ken Womble
    9 February 2016 at 10:29 am - Reply

    Josh, I knew I was going to get a response. I’m glad you were the one to pen it. Great response, great points. Hope this is not the last time we tangle.

    • Josh
      9 February 2016 at 10:34 am - Reply

      I lose my card as a Southerner if I let this pass! But it was not an easy response. You bring up good points. This is a good issue that sparks a lot of discussion. Working on some more stuff – I love the 2nd Amendment. The redheaded stepchild of the Bill of Rights…

      • shg
        9 February 2016 at 10:45 am - Reply

        Jeez, get a room, you two.

        • Josh
          9 February 2016 at 11:04 am - Reply

          I was going to challenge him to a duel, but that’s illegal apparently. Like everything else cool.

  • Darwin Smith
    9 February 2016 at 11:14 am - Reply

    The Constitution grants no rights at all. It recognizes rights that already exist. The second amendment was an attempt to recognize the inherent right of self-defense that all humans and animals have. Wolves have sharp teeth, lions have fangs and claws, and people have sharp pointy sticks, knives, and firearms. Working from the presumption that the Constitution grants rights is fallacious to begin with.

    • Josh
      9 February 2016 at 11:53 am - Reply

      No no no. It’s not even remotely the same. Pointy teeth are a physical feature of the wolf. Rights are entitlements.

      I am entitled in America to speak freely, not get unreasonable searched or seized, or keep soldiers out of my house. But if I had been born somewhere else, I may not have those entitlements. The Constitution entitles me to those freedoms. A wolf, on the other hand, was born with his pointy teeth as a physical feature. He has pointy teeth whether born on the zoo, the wilds of Alaska, or my backyard. You, on the other hand, have your rights because of the Constitution.

      While you may support the 2nd Amendment, it’s a constitutional right, not some natural right you were born with. Understand how important it is, or you stand to lose it too easily.

      • LawDog
        10 February 2016 at 8:01 am - Reply

        With all respect, Josh, the Constitution is a contract for an express agency, and its terms mark the bounds of its agency. Thereunder, the federal government is empowered to encroach upon your innate natural rights, but only in the manner specified. When its agents overstep the legitimate bounds of that agency, the “Bill of Rights” (in substance, a list of procedural remedies) is supposed to be there to provide effectual remedies.

        Not that it did that much good for Americans of Japanese descent in WWII.

      • J. C. Salomon
        10 February 2016 at 9:52 am - Reply

        It was certainly the view of the Founding Fathers that certain rights, especially including the right to own and train with the means of effective self-defense, are inherent to the human condition and not granted by any government.

        Of course even they acknowledged that it was possible for such rights to be infringed upon by government. They simply considered such infringement illegitimate: any government which would do so was a tyranny and ought to be brought down.

        There may be little practical difference in law between one view and the other, but the moral difference is vast and consequential—not least because it justifies violent opposition to a government that would infringe on these rights.

        See also ESR’s “What Amending the Constitution Cannot Do”.

      • Lee Cruse
        11 February 2016 at 4:55 pm - Reply

        Pointy teeth are a physical characteristic, however, so are hands and intelligence necessary to make tools for the same purpose.

        • Josh
          11 February 2016 at 8:48 pm - Reply

          Keep thinking about that. You will see why your analogy is more of a false equivalence…

  • Laura
    9 February 2016 at 1:29 pm - Reply

    I think Ken’s argument was over the intent of the right. The intent was to protect citizens from government, andd while certainly there are myriad failures that you can point to on any one of the Constitutionally guaranteed rights, those failures are annecdotal and the rights, if properly respected, will protect the people fromm govenment. The 2nd Amendment, however, stands no chance, unless you are advocating for personal ownership of intercontinental ballistic missiles. It’s not that the 2nd Amendment is a failure, but rather that it has been rendered obsolete by 21st century military technology.

    That said, I don’t necessarily agree with the idea of repealing the 2nd Amendment. I think we just need to require gun safety training and actual responsibile gun ownership (meaning don’t let your kids or your crazy brother in law get their hands on it without your knowledge, don’t point it at people for laughs, and don’t screw up so badly that it goes off while you’re pulling up your pants or sometrhing). If you can’t handle it with the respect it necessitates, you should not be allowed to have one. In that respect, guns should be treated like cars.

    Another point I’d like to make is that many suicides are “spur of the moment” things. If people have to think about it too much, they don’t do it. I’m not sure this is a reason to change laws about gun ownership, but it is something people should consider before bringing a gun into their homes. If your child suffers from depression, you should probably think twice before allowing that child unrestricted acess to firearms.

    • Lauren
      10 February 2016 at 6:04 pm - Reply

      There’s million of other ways to kill yourself. Definitely not “spur of the moment”.

    • Lee Cruse
      11 February 2016 at 5:08 pm - Reply

      ” stands no chance, unless you are advocating for personal ownership of intercontinental ballistic missiles.” – this is not true. First of all a government that would use such weapons on it’s own soil would have nothing left so no value in destroying your own assets. Second, you might look at the tools the enemy had in Vietnam and the middle east conflicts. I suspect that most will agree that the “most powerful military country” was defeated by masses with crude homemade weapons.

  • LawDog
    10 February 2016 at 7:55 am - Reply

    George Carlin answers this in his inimitable way: “Rights aren’t rights if someone can take them away. They’re privileges.” https://www.youtube.com/watch?v=hWiBt-pqp0E

    Let’s not beat around the bush: The highest and best use of an AR-47, in the Framers’ minds, was to assassinate those officials who abused their authority. John Adams put it this way:

    “The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.”

    The right to kill a tyrant, according to Blackstone, was absolute. But to do so, you have to have the means. The purpose of the Second Amendment defines the scope of that right. History is replete with examples of what happens when people without guns go up against those with guns.

    But is it obsolete? When your government can do this to you, http://www.newworldwar.org/sw.htm, I don’t think it matters if you have a gun or not any more. Our “rights” are gone and our liberty, not too far behind.

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    11 February 2016 at 12:50 pm - Reply

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  • Geoff
    11 February 2016 at 4:22 pm - Reply

    The Constitution does NOT grant rights, it restricts the Government from infringing on inherent Human Rights.

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