WaPo wonders: Why can't we just amend the Second Amendment?

In the wake of the latest mass shooting in Virginia, the debate continues over what to do about gun violence. While most conservatives suggest we consider doing a better job of enforcing the laws we have on the books already, Democrats are busy pushing ideas for more gun laws that only affect the law-abiding. Stepping into the argument this week is WaPo columnist Henry Olsen, who offers up a somewhat more drastic proposal. Rather than repealing the Second Amendment as many liberals would like to do, Olsen suggests we amend it to make it more functional in the 21st century. But how would that work?

The author actually does a fairly decent job of both describing and defending the arguments made by conservatives and supporters of gun rights, while also explaining some of the concerns of opponents. Then he gets down to the meat of the question. How could the Second Amendment be “improved” by editing it?

A revised Second Amendment could spell out the relationship between public safety and private rights in more detail. It could give clear safeguards for people with no history of legal trouble or mental instability to continue to own guns while giving more authority to the government to guarantee that only people unlikely to misuse guns would have them. The precise details would have to be worked out through negotiations, but the general approach — rights for safe users, prohibitions or heavy regulations for others — could work.

Critics might argue that the prospects for success are too low or that the process would take too long, but one must ask, “Compared with what?” The nation has been arguing over gun regulation since the dramatic rise in handgun crime in the 1960s. No amount of public pressure or circumstance has compelled gun owners to give in. Nor will it: Ordinary people who don’t misuse their guns have no reason to agree to give up their security or their hobbies to satisfy someone else’s theory about how to combat gun violence. This fact is not going to change, making legislative changes difficult even if Heller were overturned.

Olsen was just brought onboard at the Washington Post this January as one of their conservative commentators. As such, it’s perhaps not surprising that he’s able to articulate the concerns of gun owners and Second Amendment advocates with clarity while also summarizing the concerns of liberals who would prefer to see the country disarmed.

But despite having done a solid job of laying out the problem, Olsen leaves us without much to go on in terms of the solution. It’s an interesting idea, to be sure, and a calm, reasonable conversation between the two sides (assuming such a thing is even possible anymore) would be welcome. But the author isn’t offering much in terms of the specifics as to how the amendment would be rewritten. To be clear, I’ve long been a fan of the idea of amending the Second Amendment, but it would come in the form of dropping the first 13 words.

Olsen appears to suggest a far more wordy amendment, assuring no infringement of the right to keep and bear arms, but only for those “with no history of legal trouble or mental instability.” It would then go on to grant additional authority to the government to ensure that “only people unlikely to misuse guns would have them.”

If you’ll pardon my saying, we’re still heading for a brick wall at high speed with that sort of wording. If we were able to assume that all elected officials, judges and citizens would honor the spirit of such wording it might be salable, but that’s not how the world works. And raising these levels of specifics to the rank of a constitutional amendment removes the flexibility we have in the courts today. Allow me to expand on that a bit.

The moment you invoke a phrase like “no history of legal trouble or mental instability” the equation is upended. Who, in the future, will decide what level of “legal trouble” makes you eligible to have your fundamental rights stripped away? No matter where you draw the line there’s going to be a gray area that some people will fall under. The question of mental instability is, if anything, even worse. For proof of that, look no further than New York State’s “SAFE Act.” People were having their guns confiscated over a medical history that might have included being given a prescription to combat depression once in their lives.

Similarly, including any sort of wording referring to “people unlikely to misuse guns” is a trap door waiting to open beneath our feet. Now we’re getting into Minority Report territory and entrusting the government – likely on a state by state basis – with the power to predict in advance who might be likely to use a firearm in a crime. That opens the door to far too much governmental mischief.

Under the current system, at least in the states that have more reasonable gun laws, each individual can be examined on a case by case basis. Adjudicating a person as dangerously mentally ill is a difficult task… and it should be. The individual needs to have the opportunity to challenge such a finding and avoid false or intentionally exaggerated claims about their own mental stability. When it comes to removing the gun rights of those who have already committed violent crimes, we have laws in place to cover that and few Second Amendment supporters disagree with this system. There’s no need to add it to the Constitution.

I give Olsen credit for making the effort, and perhaps it’s possible that a rational conversation might be held on this subject. But given the furor all such suggestions are met with in much of the mainstream press, I don’t find myself hopeful of seeing any major improvements take place.