Americans Want an End to Gun Violence, but the Constitution Says No


Lori Alhadeff: The Constitution killed her daughter

The Parkland, Florida, high school massacre, which claimed 17 lives in February, is by now fast fading from popular consciousness.  The same goes for the Sutherland Springs, Texas, church shooting last November, which claimed 26 lives; the Las Vegas massacre a month earlier, which claimed 58; the Pulse nightclub shooting in Orlando, Florida, which claimed 49, and so on.  All are disappearing down the memory hole as Americans, faced with congressional paralysis and a gridlocked political system, figure that there is nothing they can do except sit quietly until the next atrocity occurs.  If a single three-year-old chokes on a plastic toy, congressmen will fall all over themselves in the rush to introduce remedial legislation.  But when a troubled 19-year-old walks into a school and blows away a dozen or more teenagers and adults, all they can do is offer “thoughts and prayers” and then scurry away from the news cameras as fast as their feet will carry them.

Why is reform easy in one instance and all but impossible in another?  This was the subject of a New York Times news analysis on Monday, which summed up the answer in just three letters: NRA.  As reporter Clyde Haberman wrote, “Efforts at the federal level to reduce the mayhem have gone nowhere for many years, to a large extent because of the power of the National Rifle Association.”  Even though it looked for a while that things might be different after Parkland, the moment passed as gun lobbyists dug in their heels and politicians launched into their usual double-talk.  “Once again,” says Haberman, “the NRA and its fundamentalist interpretation of the Second Amendment prevailed.”

The problem thus boils down to a single lobbying group and the twisted reading of the Constitution that it foists on Congress and the courts.  The solution therefore seems to be simple.  Defeat the NRA, and all the rest of the craziness – the shootings, the gun nuts, the weird conspiracy theorists going on about “crisis actors” and the like – will go down with it.

But it’s not quite so easy.  What the Times forgets is that lobbies don’t grow on their own.  If they’re big and powerful, it’s not just because they’ve signed up lots of members and thrown lots of money around Washington, but because they speak to the needs of the larger capitalist structure.  If the National Association of Realtors, to cite a no-less-powerful super-lobby, strikes fear in Washington, it’s not only because it has thousands of members ready to dial their congressman the moment their interests are threatened.  To the contrary, it’s because Congress has made individual homeownership a national priority since the New Deal and, as a result, has encouraged the growth of a vast real-estate market and all that goes with it.  It encouraged the NAR and other such groups to grow big and powerful so as to serve the industry and provide friendly forces on Capitol Hill with political support.

The same goes for the NRA.  It, too, is a product of the larger structure.  As formidable as 1.1 million fired-up members may be, the real source of its strength lies with the constitutional structure, in particular the Second Amendment, which, contrary to the Times, the group understands all too well.

The Second Amendment is a fascinating problem, which is why I find myself returning to it every decade or so (examples here, here, and here).  For years, its meaning appeared to be settled.  Since it begins by declaring that “a well-regulated militia … [is] necessary to the security of a free state,” it seemed clear that the right to bear arms existed only for the purpose of advancing such a goal.  Given that state militias have been federalized since 1903, the result was a constitutional plank guaranteeing every citizen the right to enlist in his or her local National Guard, no more and nor less.  The idea that it gave ordinary people the right to stockpile assault rifles or machine-guns was nonsense.  As the ACLU declared in 1980, “the right to bear arms is a collective one existing only in the collective population of each state for the purpose of maintaining an effective state militia.”

So it seemed.  But when scholars took another look beginning in the 1980s, a different view took shape.  Significantly, it was not conservatives who led the charge, but liberals and leftists for whom the ACLU interpretation seemed all too pat.  One was a civil-rights activist turned anti-poverty lawyer named Don B. Kates Jr., who published a path-blazing article in the Michigan Law Review in 1983.  Another was a constitutional scholar at the University of Texas Law School named Sanford Levinson, whose article, “The Embarrassing Second Amendment,” published in the Yale Law Journal in 1989, triggered a mini-academic revolution.

What they found, simply, is that the amendment was the product of a different age and hence was not easily reconciled with the needs of modern society.  Since there was no police force in the 1700s and no standing army other than one forced on the colonists by the British, “patriots” regarded it as an article of faith that it was up to ordinary citizens to maintain public safety and provide for the common defense.  Instead of a professional military force, the right to bear arms thus applied to “[t]hewhole body of able-bodied male citizens declared by law as being subject to call to military service,” to quote the Federalist Nathaniel Webster.  Citizens who were armed and free were the ultimate protection not only against foreign invasion, but against tyranny arising from within.  As a long political tradition maintained, the only people who could protect freedom were the people themselves – provided they were armed.

This was the ideology put to the test in 1775 when roughly a thousand armed colonists converged on some 700 British regulars in the Battle of Lexington and Concord, picking the Redcoats off one by one as they straggled back to Boston. Although Washington understood that Americans needed a regular army of their own, the concept of a popular militia welling up from below continued to occupy a hallowed place in patriotic mythology.  As Madison put it a few years later in the Federalist Papers, European tyrannies were “afraid to trust the people with arms” whereas Americans possessed “the advantage of being armed … over the people of almost every other nation.”  James Monroe wrote that “the right to keep and bear arms” was one of the basic “human rights” that should be constitutionally enshrined, while Patrick Henry declared that “[t]he great object is that every man be armed.”  After ratifying the Constitution in June 1788, New Hampshire called for a bill of rights specifying that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”  So did New York and Rhode Island along with a substantial portion of the Pennsylvania ratification convention.  In all, five state conventions called for constitutionalizing a right to bear arms compared to only four that demanded the same protection for freedom of assembly and only three that called for a constitutional guarantee of the right of free speech.

Clearly, no issue touched Americans more deeply than the people’s right to bear arms, not as part of an official army or militia, but informally and on their own.  This is what one would expect of what was still a revolutionary republic.  What the Times sees as a “fundamentalist interpretation of the Second Amendment” is in fact far more nuanced than the ahistorical nonsensea put forth by the ACLU.

But the implications are themselves revolutionary. If the amendment still bears the stamp of the 18thcentury, then there’s no way of smoothing out its rough edges so that it fits comfortably into the 21st.  Either the amendment says what the NRA says it does — which it in fact does, more or less — or it needs to be updated.  This is a very simple task.  Or, rather, it would be a simple task were it not for an amending clause in Article V that is just as dysfunctional as anything else the document has to offer.  The amendment needs to be fixed yet can’t be because the founders neglected to include a proper toolkit enabling Americans to do the job.

But the problem goes even deeper.  The Second Amendment is the only amendment with what might be called a preamble, which is to say the first thirteen words declaring “a well-regulated militia” to be “necessary to the security of a free state.”  As such, it can be seen as a kind of mini-constitution in its own right.  But where the larger Constitution outlines a more or less conventional view of representative government, the smaller constitution within suggests something different, i.e. a bottom-up republic in which people do not elect congressmen to govern for them, but govern themselves, locally and organically, on their own.  As Levinson observed in the Yale Law Journal:

[J]ust as ordinary citizens should participate actively in governmental decision-making, through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make the decisions, so should ordinary citizens participate in the process of law enforcement and defense of liberty rather than rely on professionalized peacekeepers, whether we call them standing armies or police.

It’s a question of participation versus representation, of local versus centralized control, of government by us and people like us as opposed to distant strangers who may be very different.  It’s hardly surprising, consequently, that the second constitution has emerged as a rallying point for Patrick Buchanan’s “pitchfork brigades,” rural folk and small-town dwellers outraged that government in faraway Washington has, in their view, fallen into the hands of racial minorities, feminists, gays, and the urban masses in general.  The Second Amendment thus incorporates a pre-modern concept of freedom that was prevalent in 18th-century America, a concept of freedom from democracy rather than something achieved through it.

When the NRA says it’s “freedom’s safest place,” this is what it means.  So which concept of government do today’s Americans favor – local or national?  The answer is, almost by definition, the latter.  Yet it doesn’t matter because a pre-modern Constitution favors the former. While Americans support stricter gun control by a margin of 68 to 25 according to the latest poll, the governing structure says otherwise.  No matter how many high school students demonstrate in the streets, no matter how many mothers like Lori Alhadeff – whose 14-year-old daughter Alyssa was among the Parkland victims – cry out in anguish for “action, we need it now, these kids need action now,” action is something they won’t get.  This is not because politicians are corrupt, cowardly, or mealy-mouthed – although they are all those things and more – but because the constitutional structure says no.

Instead of government of, by, and for the people, the result is a dictatorship by a dead document that is increasingly at odds with the population it claims to serve.  This is the problem that the Times can’t bring itself to face, which is why it wants us to believe that responsibility lies solely with the NRA.  It’s determined to shut its eyes and those of its readers too.