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Bang / Guns Title: Law Professor Demands Repeal Of 'Outdated' Second Amendment, Makes Very Weak Case George Leef Contributor Law Professor Demands Repeal Of 'Outdated' Second Amendment, Makes Very Weak Case The massacre in Orlando has prompted many demands for still more laws intended to prevent deranged killers like Omar Mateen from getting their hands on firearms. It has also occasioned more radical ideas, including the repeal of the Second Amendment. That is exactly what Drexel University law professor David S. Cohen proposes in his June 13th article in Rolling Stone, “Why It’s Time to Repeal the Second Amendment.” Naturally, Cohen’s writing is full of passion. Anti-gun forces will no doubt laud his piece as visionary and compelling. It lacks any good arguments, however and suffers from the fatal flaw of all “progressive” demands for more laws to solve problems – the assumption that just because a law is meant to accomplish some objective, it actually will accomplish it. Before opening his attack on the Second Amendment, Cohen reminds us that the Constitution shouldn’t be treated as sacrosanct. On that, I agree with him. Some of its power concessions to the federal government were unwise, as the Anti- federalists argued during the ratification debates, such as giving Congress the power to borrow. But much of the Constitution is sound, even if sometimes ignored. The First Amendment, for example, was wisely intended to keep politics out of religion, the press and free speech. The Fifth Amendment was sensibly intended to protect private property. Both are fraying around the edges, but it would be disastrous to repeal them and let politics run wild in those spheres. So, what about the Second? Cohen contends that it is “outdated” because the Constitution’s drafters couldn’t imagine the rapid- fire weapons we now have. True, they probably couldn’t have, but they wouldn’t have written it differently even if they had. First, they were perfectly aware of other means at the time that could be used to kill or maim great numbers of people. They knew, for example, that you could do that with kegs of gunpower. The famous 1605 Gunpower Plot intended to blow up Parliament and kill King James was foiled, but the 36 kegs of powder placed there would have done enormous damage and claimed many lives if Guy Fawlkes had managed to light the fuse. But the Founders put nothing in the Constitution empowering the government to control access to gunpowder. Even if they had known about machine guns, they would have written the amendment the same way, understanding that laws meant to prevent bad people from doing bad things won’t work. Furthermore, it simply doesn’t follow that because maniacs and criminals can obtain and use guns (or bombs, poison gas, or biological agents) to kill large numbers of people, the entire law-abiding community should be disarmed. The media hardly ever reports these cases, but armed Americans frequently use (or just threaten to use) guns in ways that stop criminals from killing or committing other felonies. Anti-gun people like Professor Cohen breezily dismiss the probability that an armed individual might shoot a killer, saying that even more innocents might be killed, but there is no way of knowing that, and there are instances where the timely presence of an armed individual stopped a killing spree. Law professor Eugene Volokh provides some good examples of such cases in this Washington Post piece. For more data on instances where Americans used firearms to stop crimes, read this article. Good guys with guns often do stop or deter bad guys with guns. Repealing the Second Amendment would eliminate the sole constitutional restraint against the complete politicization of firearms. Even with it, we have a lot of gun control legislation, and many law-abiding Americans are kept from acquiring a gun for protection – such as San Francisco resident Espanola Jackson, whose case I discussed here. At best, the Second Amendment sometimes prevents politicians and bureaucrats from going too far. In District of Columbia v. Heller, e.g., city officials were not allowed to continue denying gun permits to peaceful individuals who live in areas where violent crime is a constant threat. If the Second Amendment were gone, people like Dick Heller could be prevented from legally acquiring a gun for defense. Gun control advocates might argue that in a utilitarian calculus, fewer lives would be lost if the government had plenary power to decide who is allowed to have a gun and who is not, but such a calculus is impossible. The question here is one of rights and that is what the Second Amendment protects – our right to keep and bear arms. Each person has an inherent right to self-defense and it is no business of the government to tell him how to exercise it. (“No, you aren’t allowed a gun, but we allow you to have a can of Mace and encourage you to call 911 immediately if you’re in danger.”) Just as the First Amendment protects our religious, press and speech freedoms against political derogation, the Second protects the equally important right of self-defense. One of our earliest legal scholars, St. George Tucker, called it the “palladium of liberty” in his 1803 book View of the Constitution of the United States. But what about the rights of all the innocent people who are killed by the likes of Omar Mateen, Syed Farook, Dylann Roof, Aaron Alexis, Nidal Hasan, the several Bataclan Theater killers in Paris and others? The sad truth is that it’s impossible for government to prevent evil people from carrying out murderous plots. Even France’s far-reaching gun laws didn’t prevent the Paris massacre last year. The trouble is that impossibility doesn’t keep politicians from trying to do things. We amended the Constitution to authorize Prohibition and for the next 13 years the government tried to keep people from drinking and producing alcohol. That was impossible, but when people didn’t meekly comply with the law, officials kept upping the coercion and resources devoted to forcing them to. Many lives were lost before the nation came to its senses and abandoned that idiotic crusade. Because politicians seldom learn from history, let’s imagine the consequences of repealing the Second Amendment. An administration committed to the slogan Stop the Gun Violence! could launch a war on guns by executive order. That order would, of course, outlaw the sale of guns, but that wouldn’t accomplish much, since there are already millions of guns “out there.” Therefore, confiscation would be necessary. We have been through something like that in the past. As attorney and historian Jacob Hornberger points out in this piece, by Executive Order 6102 in 1933, FDR undertook to confiscate gold coins owned by citizens. Many Americans complied, thinking that the risk of going to prison was worse than the loss of wealth, but others refused, hiding their gold away until the day when owning gold would no longer be illegal. (Presidents do not have any legal authority to decree the theft of private property, but Roosevelt couldn’t have cared less. He figured he could get away with it, and did.) Hornberger relates that sorry episode in our history to a possible gun confiscation campaign. “Given the right crisis- environment,” he writes, “the same thing could happen with assault rifles and other semi-automatic weapons that are legal today.” A law or executive order ordering those guns (and why not really “solve” the gun problem and go for all?) be turned in as of a certain date with criminal penalties for anyone who failed to do so would probably bring in a huge number of guns. But undoubtedly not all of them, so the government would have to root them out, much as Prohibition agents tried to root out stills and catch bootleggers. America without the Second Amendment would start to look like the world of Fahrenheit 451, only the government’s target would be guns rather than books. And here’s another complication: It’s quite possible now to create homemade guns like the AR-15, as we learn in this Wired piece. Of course, it’s also possible to smuggle in automatic weapons for terrorists bent on mass murder. As for bombs or other killing methods, vast resources could be deployed toward preventing people from making them and still miss most attempts. A campaign against illegal gun ownership is also bound to poke large holes in the Fourth Amendment. We have experienced that with the war on drugs, where SWAT team raids have claimed the lives of many innocent people. Thomas Sowell is absolutely right in calling gun control a “farce.” He points to the abundant evidence that the constant tightening of gun control laws here has not reduced crime or murder rates. He also recommends reading Professor Joyce Lee Malcolm’s book Guns and Violence: The English Experience. Her key finding is that as the number of guns in private hands decreased under Britain’s increasingly severe gun control laws, violent crime soared. The Second Amendment is not outdated. It is all that stands between us and a political onslaught against peaceful gun ownership. RECOMMENDED BY FORBES The Cities With The Most Billionaires If You Hear This In A Job Interview, Run Away This article is available online at: 2016 Forbes.com LLC™ All Rights Reserved Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 2.
#1. To: Kanary Klan Demands Repeal Of 'Outdated' Second Amendment, Makes Very Weak Case (#0)
Say it isn't so, you gungrabbing canarys.
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