On Las Vegas, the Second Amendment and the Current Constitution

Las Vegas Massacre, NBC News
NBC News Photo

The Las Vegas massacre was a horrible tragedy.

Most people and even most members of Congress probably agree that no citizen ought to possess the weaponry Stephen Paddock legally acquired.  Almost everyone would probably agree that there is no justification for the manner in which it was used.  But if gun ownership rights are based on the Second Amendment to the Constitution, even tanks and aircraft carriers and nuclear weapons in private hands would be protected.  Of course, current contexts were not adequately presaged a quarter of a millennium ago.  Back then, the authors of the current Constitution, those to whom we refer as the Founding Fathers, envisioned a country without standing military forces protected by well-organized state level militias armed with the best and most modern available weaponry, not sticks and stones and arrows and spears, not even just muskets; in their lack of foresight, no limits were imposed.  It reads “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.”  No ifs, ands or buts.  Of course, the same constitution preserved slavery.

Unlike the First Amendment which restricts only Congressional action, by its extremely broad terms, the Second Amendment seems to apply everywhere and anywhere at every level of government and in all three of its branches.  Yet its anachronism is undeniable.

The only valid legal attack consistent with the Constitution on how the Second Amendment was to be interpreted could come, not from those seeking to limit gun rights but from those who demand its full and complete applicability to all arms (after all, the amendment does not refer to guns or rifles or any limiting adjectives), an action on behalf of those who demand the unrestricted authority to bear “arms”, arms of any kind including the nuclear arms Iran is denied and which we seek to strip from North Korea.  Indeed, such a legal challenge might prove useful to those seeking to limit unfettered access to “arms”.  Perhaps such a legal challenge would make clear the need to conform the anachronistic constitutional concept to current realities.  Not even the NRA would support our right, obvious in the text of the Amendment, to each have our own nuclear arsenal, aircraft carriers and ICBMs, although few of us could afford them.  On the other hand, one can never really predict what decisions judges will arrive at.

The only realistic solution I sense is a negotiated replacement of the Second Amendment recognizing legitimate interests that enough of those enamored of firearms, for whatever reason, would accept in the context of a constitutional amendment subjected to reasonable conditions which, as worded, the current amendment’s clear meaning would not support.  Replacement is not a novel concept.  After all, the Eighteenth Amendment was repealed and others have been superseded by subsequent amendments.

On still another hand (as though we were Hindu divinities), judicial review has made much of the Constitution barely recognizable and a decision claiming black is really white would not be much of a deviation from the norm.  That is the avenue most liberal proponents of gun control seem to count on, after all, except for the Supreme Court, almost two-thirds of the federal judiciary has been appointed by former presidents Clinton and Obama.  Unfortunately, even were the Supreme Court to agree to a tortured enough interpretation of the Second Amendment to render it reasonable, a future Supreme Court could just as easily determine that black and white are both really blue.  The United States judiciary has become so utterly politicized both from the left and the right that in reality it no longer conforms to the concepts inherent to a legal system but rather has evolved into a more autocratic political branch used primarily by political parties out of power (like today’s Democratic Party) that have appointed majorities in the judiciary.  Take for example the Ninth Circuit Court of Appeals and the District Courts it encompasses and their recent successful efforts to thwart the combined efforts of the two traditional political branches, the Congress and the Presidency.

The foregoing is collectively why, and it has been for more than a century, way past time for a new Constitutional Convention, one to address the many, many, many deficiencies in our poor, tired, worn out and abused current Constitution, a calcified relic we adore but don’t’ respect.  The fact is that many of its amendments have so changed the Constitution that it is now incoherent, especially with respect to how federalism works and the nature and scope of constitutional control and review and interpretation.  Take for example the Senate, once an organ designed to give state legislatures an essential role in the federal government it has been converted by the Seventeenth Amendment into an undemocratic popularly elected redundancy but vested with substantially more power than the purportedly democratic House of Representatives (e.g., it ratifies all federal judges and all important executive branch appointive officers as well as ratifies treaties, etc.).  Or the Electoral College, once an institution designed to permit election of the President by the most qualified and wise electors but now just an undemocratic distorter of popular votes.

Time changes and times have changed; so have we, we’ve changed as a society and in the context of our place in the state and the state’s place in the international community.  Our Constitution has not kept pace, rather, it has been further tortured by the practice of almost constant amendment by judicial fiat, entrusted to nine elderly and isolated oligarchs in a system we claim to be democratic.  The formal amendments we have made are few, far between and never based on a holistic analysis of the Constitution as a whole and of how each amendment will affect its entirety.  The Second Amendment is an example, but so are the Sixteenth (income tax) and Seventeenth (the Senate), as are changes in electoral norms through state action (the Electoral College and gerrymandering the House of Representatives).

The fact is that the need for Constitutional reform is obvious.  But the fact is also that our rulers so fear us, that no major or even second level political party is willing to trust the People, now experienced in constitutional governance, with a possible revision of our form of government, one that might result should a new constitutional convention be convened.  Democracy was never a goal of our current Constitution, indeed, as evinced by a great deal of documentary and historical evidence, the Constitution was designed to avoid the evil of “mob rule” (the old pejorative term for “democracy”, the modern pejorative form being “populism”) but dressed in its veneer.  Perhaps our current rulers recall too well that our own Constitution was born illegitimate, in contravention of the orders the states gave their representatives to the Philadelphia Convention (to tinker a bit with our original constitution, the Articles of Confederation) but even worse, in contravention of such Article’s requirements for amendment or adoption of a successor (unanimity, 13 of 13 state legislatures had to approve, a number the authors of the Constitution unilaterally changed to nine).  If precedent is valid in a common law state such as ours, that precedent must seem very, very ominous.

So, do we continue with incoherent governance in a context that legally facilitates massacres or do we start doing something about it.  Something real rather than just complain and pass the buck to those responsible for placing us where we find ourselves.

Once more, despite how painful it seems to be for too many of us, “something to think about”.



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