NYT's conservative columnist: It's time to repeal the Second Amendment

Give the estimable Bret Stephens credit for getting to the heart of the debate by discussing the position that gun-control advocates avoid like the plague. It takes Stephens a long time to get there, meandering through a series of questionable analyses of conservative positions and a rather damning litany of progressive hypocrisies and failures, but get there he eventually does. His argument in a nutshell is that James Madison wouldn’t have been a fan of Red Dawn, and that the 2nd Amendment no longer fits the America of our times:

Repealing the Amendment may seem like political Mission Impossible today, but in the era of same-sex marriage it’s worth recalling that most great causes begin as improbable ones. Gun ownership should never be outlawed, just as it isn’t outlawed in Britain or Australia. But it doesn’t need a blanket Constitutional protection, either. The 46,445 murder victims killed by gunfire in the United States between 2012 and 2016 didn’t need to perish so that gun enthusiasts can go on fantasizing that “Red Dawn” is the fate that soon awaits us.

Donald Trump will likely get one more Supreme Court nomination, or two or three, before he leaves office, guaranteeing a pro-gun court for another generation. Expansive interpretations of the right to bear arms will be the law of the land — until the “right” itself ceases to be.

Some conservatives will insist that the Second Amendment is fundamental to the structure of American liberty. They will cite James Madison, who noted in the Federalist Papers that in Europe “the governments are afraid to trust the people with arms.” America was supposed to be different, and better.

I wonder what Madison would have to say about that today, when more than twice as many Americans perished last year at the hands of their fellows as died in battle during the entire Revolutionary War. My guess: Take the guns—or at least the presumptive right to them—away. The true foundation of American exceptionalism should be our capacity for moral and constitutional renewal, not our instinct for self-destruction.

 At least this takes the debate to its proper level. The Constitution provides two mechanisms for change in Article V. Either Congress can pass amendments and have them ratified by three-quarters of the states, or the states can gather for a convention to propose amendments directly. Those who argue that the Constitution is outdated — as Stephens does here — usually want courts to redefine the language so as to neuter it. Stephens even alludes to that by noting the advantage that 2nd Amendment backers will have in the courts by the end of the Trump administration, effectively closing off the path that worked so well for the same-sex marriage effort he also cites in his four-paragraph argument.

Unfortunately, Stephens uses some curious arguments even in these four paragraphs. For instance, his comparison to Revolutionary War casualties lacks the context of population. Battle deaths for the US were between six and seven thousand (more than twice as many died of disease) from a population of about 2.8 million. As far as Red Dawn fantasies, Madison may well have recalled how an empire sent troops to invade what Madison considered sovereign states during his lifetime, which was the reason for those deaths — and the armed citizenry that allowed those states to defend themselves, even if those scenarios are highly unlikely today.

In fact, Stephens shows little charity toward conservatives in the entire piece, reducing the defenses of the 2nd Amendment to a series of strawmen. Most egregious among these is Stephens’ argument that a “Mohammed Paddock” would have gotten notice from the FBI, hinting at a double standard in law enforcement and among conservatives, when the Pulse nightclub shooting by Omar Mateen sixteen months ago pretty much puts paid to that notion. Or, for that matter, the San Bernardino terrorist attack the previous year, perpetrated in part by a visa applicant whose social media posts showed signs of radicalization.

David Harsanyi goes into greater detail in rebutting Stephens’ run-up:

“From a law-and-order standpoint, more guns means more murder,” writes Stephens, before pulling a narrowly catered statistic that ignores the vast evidence that the number of guns does not correlate with the murder or the crime rates. They are all over the place. What studies like this do, though, is purposely conflate gun homicides and suicides. If Stephens wants to argue that confiscation would lead to fewer suicides, he’s free to do so. But he’s also going to have to explain why countries with the highest suicide rates often have the strictest gun control laws. The fact is that despite a recent uptick in crime, since 1990, the murder rate has precipitously dropped — including in most big urban centers — while there was a big spike in gun ownership.

Then Stephens compares justifiable gun homicides — shooting a felon while protecting one’s home, etc. — with unintentional homicides with a gun. After some back-of-the-napkin calculation, Stephen concludes that guns are useless as a means of personal protection. Anyone who’s spent ten minutes thinking about gun control understands there is no way to quantify how many criminals are deterred by the presence of guns, or how many, for that matter, are turned away in the midst of crime. Has anyone calculated how many non-gun-owning families are safer because their neighbors own firearms? …

To his credit, Stephens refrains from comparing random madmen with those who kill in the name of a worldwide ideological movement that relies on terrorism as a political weapon. We can do something to detect the latter. It should be pointed out that the FBI might not have done anything about a “Mohammad Paddock,” in the same way they were unable to do anything about Syed Rizwan Farook or Tashfeen Malik or Nidal Hasan or Omar Mateen. Yet Second Amendment advocates certainly didn’t call for the confiscation of guns afterwards.

Stephens misses one crucial argument in this parade of strawmen, which is the natural right to effective self-defense. The Constitution protects that right rather than grants it, and for good reason. Stripped of that ability, citizens would demand an ever-increasing police state that would erode all other liberties, a trend which we see in other contexts — such as the war on drugs. Without the 2nd Amendment, we’d have a stampede toward that result as criminals would gain a strong-arm advantage over law-abiding citizens. That recognition of natural law, and of citizens’ ability to live by it, is part of our moral and constitutional legacy — not the usurpation of liberty by the state.

Even those examples of terrorism could be used by Stephens to argue for a repeal of the 2nd Amendment, of course. But what happens if it is repealed? As Stephens also argues, gun-control advocates really don’t have any effective proposals except complete and total gun confiscation. That’s even less practical than deporting 11 million undocumented aliens in the US, and much more likely to result in serious violence and unrest. Short of that, the laws that would pass within a model of government-approved firearm ownership would be as effective as laws in Chicago and Washington DC were before Heller and McDonald. They would disarm the law-abiding while doing little to disarm the criminals, as the repeated non-sequitur proposals from ignorant gun-control advocates demonstrate.

Finally, the problem with repealing the 2nd Amendment is still the Constitution. There’s a reason why states didn’t try to amend it for same-sex marriage or abortion, and relied on the Supreme Court to find emanations from penumbras to accomplish it indirectly and very arguably dishonestly. It takes three-quarters of the states to ratify an amendment. Which of the thirty states won by Donald Trump in 2016 would vote in favor of such a change? It would take at least eighteen to flip, plus holding every state Hillary Clinton won, assuming an amendment got out of Congress or an Article V convention in the first place.

Since we’re in the mood to ask academic questions of James Madison, perhaps we should also ask what he’d think about having the federal government involved in lots of other things than just firearm control. What would he think about Wickard v Filburn, for instance? The New Deal? The 17th Amendment? My guess is that Madison would have a lot more worries than just Red Dawn fantasies about the way in which the Constitution has been interpreted.