You probably think I'm nuts.
Just after the Senate has killed two bills that would have modestly restricted gun rights, am I seriously proposing that we tamper with the wording of the Second Amendment? That we infringe upon the sacred, quintessentially American right to bear arms?
Yes. That's what I'm saying we should do. If we don't, we not only invite another massacre like the one that killed 49 people in Orlando; we also throw up our hands in abject surrender to gun violence throughout the nation. So far this year, according to the Gun Violence Archive, firearms have killed over 5,000 people in this country and injured over 10,000 more. During just the week after the Orlando massacre, 228 more people have been killed with guns elsewhere in America.
Why can we do nothing effective against this mayhem? When a reported 90 percent of Americans favor background checks at gun shows and barring gun sales to suspected terrorists, why can't the Senate muster the 60 votes needed to take either of these simple steps? The standard answer is that not enough lawmakers have the guts to spurn the money or buck the muscle of the NRA. But if we look behind the NRA, we find that much of its power springs from the exasperating ambiguity of the second amendment, which seems to say that each of has an absolute, unconditional right to own any weapon we wish -- and to carry it anywhere we want.
How did this happen? In a thoroughgoing study of the origin of the Second Amendment, David E. Young has explained that James Madison and Congress together distilled it from declarations made by various states, and in particular from Section 17 of the Bill of Rights proposed by the 1788 Virginia Ratifying Convention:
That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
Obviously, the purpose of this Virginia declaration was to clear the way for a "well-regulated militia" as a "safe" alternative to a standing army. The "body of the people," it states, should be "trained to arms" so as "keep and bear arms" in "safe defence of a free state" -- whether the state of Virginia, or the United States as a whole, against its enemies. Most important of all, the declaration plainly states that "the military," which surely includes militias, "should be under strict subordination to, and governed by, the civil power."
Is it conceivable that this Virginia declaration -- the direct precursor to the Second Amendment of the U.S. Constitution -- gives any individual the right to own and carry any sort of gun without any training, without any regulation, without any reference to safety, and without any "subordination to . . . the civil power," let alone "strict subordination" to its laws?
Yet this absolute freedom from all training, safety and regulation is what the Second Amendment seems to promise all gun owners:
"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."
In approving this condensed version of the Virginia declaration, Madison and Congress must have thought that it preserved the essential points of the original. Instead, it consigned the bearing of arms to a sinkhole of ambiguity -- as exemplified by the Supreme Court ruling of 2006 in the case of Heller vs. the District of Columbia. In overturning a twofold DC ban on registering firearms and on keeping functional firearms in one's home, the late Justice Antonin Scalia argued for the majority that the Second Amendment did not confine the bearing of arms to those serving in a militia. Instead, Scalia wrote, it proclaimed "an individual right to possess and carry weapons." Unfortunately, the great Originalist never explained where this right is stated in -- or even implied by -- the original version of the Second Amendment: the Virginia Declaration.
But an "individual right" can be judicially wriggled out of the Second Amendment because this amendment is riddled with ambiguity. Instead of granting gun rights to "the body of the people," which is unambiguously a group, the amendment says simply "people," which can be read as individuals. And instead of making the right to bear arms depend on good training and "safe defence of a free state," it makes the right dependent on nothing at all.
Of course the framers of the Constitution did not foresee that Americans would one day possess over 300 million guns and would insist on the "individual right" to own assault rifles capable of killing scores of people in seconds. But the Second Amendment makes all of us live and thousands of us die each year by means of a deadly ambiguity that could have been readily forestalled by wording such as either of the following:
"Insofar as a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms in such a militia shall not be infringed."
Instead of such clarity, we have stubborn ambiguity. But do we really have to go on living with language that makes us powerless to do anything effective against gun violence? In the wake of Scalia's ruling, every kind of gun restriction we might enact by statute may be overturned by the supposed Constitutional principle that the "individual right" to "keep and bear arms shall not be infringed." If Scalia's reading of the Second Amendment is right, what are the legal grounds on which anyone can be forbidden to carry an assault rifle into a nightclub -- or onto an airplane, for that matter? How can airport security officers legally infringe my right to board a plane with an AK-47 strapped to my back?
Of course you can say that no right granted by the Constitution is absolute and unconditional. The First Amendment right to freedom of speech, for instance, gives no one the right to shout "fire!" in a crowded room or advocate the violent overthrow of the government. But in light of the Senate's refusal to take even the tiniest of steps against gun violence after the Orlando massacre, it is more than ever obvious that the single biggest obstacle to gun control in America is not the NRA. It's the wording of the Second Amendment.
How then do I propose to amend it? Not by either of the versions given above, which would needlessly stress the now obsolete role of citizen militias. (We don't need them because we've long since learned to accept standing armies.) Instead, I would keep every word of the Second Amendment -- and add just five words to the end of it:
". . . the right of the people to keep and bear arms shall not be infringed except to ensure public safety."
By themselves, these five new words would not add one new curb on gun rights in America. Any new move to restrict or regulate those rights would still have to be fought out in state or federal legislatures, where the NRA would remain perfectly free to flex its political muscle. But no gun control bill that ran this gauntlet to become law could ever again be overturned on the grounds that it infringed the Constitutional right to bear arms. The added words, therefore, would make one simple point: the people's right to bear arms cannot trump the government's right to protect us from gun violence, the government's right to weigh our desire for weapons against public safety, and to strike a reasonable balance between the two.
Let's stop fighting about laws that run head on into the Second Amendment. After more than two centuries of deadly ambiguity, let's amend the amendment itself.
Do you still think I'm nuts?