gracchusdixit

In the wake of the mass murder of 17 people—students, teachers, and athletic coaches—at Stoneman Douglas High School in Parkland, Florida, retired Supreme Court Justice Stephen Breyer was rash enough to propose that it is time for the 2nd Amendment to the Constitution to be repealed.  When Breyer was still on the court, he was consistently skeptical about the ways in which the 2nd Amendment was being manipulated and distorted by special interests.  It was Breyer who wrote the dissenting opinion in District of Columbia v. Heller, a narrow five-to-four decision that, for the first time in our history, declared gun ownership to be an individual right rather than a contingent and collective right, the purpose of which is ensure the security of the community as a whole.  

Breyer’s dissent in Heller was by no means eccentric or quixotic.  On the contrary, he was giving voice to more than a century of settled 2nd Amendment law.  Nor was he alone.  Many years before, former Chief Justice Warren Burger declared:  “The 2nd Amendment has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”  Let it be noted that Burger was appointed as Chief Justice by none other than Richard Nixon.  When he made that declaration, you would have been hard-pressed to find a more staunchly conservative jurist in the land.

Despite all that, Justice Breyer’s recent pronouncement was immediately and roundly attacked by voices at both ends of the political spectrum.  The attacks from the right followed a predictable course, proclaiming, as they always do, that the 2nd Amendment is the equivalent of biblical writ, a notion that is absurd on its face. The Constitution of the United States deserves respect, not reverence.  It is a document that was written by men, not gods; and like all acts of mortal men, it can be revised, rewritten, or reimagined.

The attacks from the left have been more surprising and contorted.   One criticism is that the very idea of repealing the 2nd Amendment is so unrealistic as to be ridiculous.  Those who advance this critique suggest that Breyer is living in some sort of cloud-cuckoo-land, indulging in a delusional fantasy.  Another criticism is that Breyer’s proposal is a distraction—raw meat for the rabid right—that risks complicating the prospects for securing what are usually called “common-sense” gun laws.   

Breyer’s critics are wrong. 

To begin with, it is by no means delusional to contemplate changing the Constitution.  The process is a difficult one, to be sure, but far from being impossible.  After all, the Constitution is an 18th century document.  Much of what it contains, particularly those provisions that concern fundamental ideals and aspirations, continues to be relevant today.  But that has never been the case with all of its provisions, and we as a nation have repeatedly been willing to discard, revise, or overturn those of its provisions that proved to be irrelevant.  The Constitution, in its original state, did not allow women the right to vote; we changed that.  It countenanced slavery and denied basic human and citizenship rights to African-Americans; we changed that.   It allowed the states to use poll taxes to suppress the votes of minorities and poor persons in general; we changed that, too.  None of these changes was easy, and yet all were accomplished.

It is time to acknowledge that the 2nd Amendment is one of the provisions in our Constitution that has outlived its usefulness, is no longer relevant, and now does more harm than good.  Whether the 2nd Amendment is interpreted as an individual or a collective right is neither here nor there.  It is quite simply an outmoded and dangerous anachronism that has no place in a modern society.  There is no longer any “frontier” to be conquered; there are no “savages” to be subdued; there are no foreign “tyrants” to be repulsed.  We haven’t needed “a well-regulated militia” for generations, and we certainly don’t need a bunch of gun-toting, self-proclaimed Minutemen roaming the streets of our cities or the backroads of the countryside.  If such people want to play soldier, let them watch video games.  To put weapons of death in their hands is utter madness.

Those who criticize Justice Breyer’s proposal as an extreme and risky distraction are just as wrong-headed as those who think changing the Constitution is impossible.  The truth of the matter is that the oh-so-practical proponents of “common sense” gun control have for decades accomplished precisely nothing.  And why is that?  It is because the National Rifle Association has never stooped to being accommodating or practical.  It has consistently taken the extreme position that any and all gun control is a “slippery slope,” one that will lead inevitably to the total abolition of firearms.  By taking this position, the NRA and its backers in firearms industry have succeeded in neutering every proposal for “common sense” gun control.

It’s about time that those who oppose our country’s cancerous gun culture take an equally strong stand.  If we ever hope to defeat the NRA and the gun lobby, if we truly want to end the slaughter in our schools and on our streets, it’s time to fight fire with fire.  Justice Stephen Breyer has shown us the way.  We should hear his call.