Fifty-eight dead, nearly 500 injured, but our national debate will come through unscathed.
Like so many before it, the mass shooting in Las Vegas has resolved into a set piece between gun-rights advocates and gun-control advocates, yielding no fundamental change. Bump stocks may get banned, but that’s as far as things will go, because in America, discussion ends with the 2nd Amendment.
Worse, the 2nd Amendment ends discussion. The other day, I heard an expert close a debate by shouting, “Too bad, it’s in the Constitution!” That really is too bad, because the Constitution is getting in the way of the conversation. There’s a lot to debate about guns and law. Do guns guard against tyranny? Do you support background checks? Do you like to hunt? There are good reasons to limit guns, and to have them. But the 2nd Amendment isn’t one of those reasons.
Sensible people disagree about what the 2nd Amendment means. Perhaps it ensures an individual right, forbidding restrictions on “constitutional carry.” Perhaps it refers only to militias, and therefore authorizes regulation. But everyone agrees that the 2nd Amendment was an amendment — a change to the Constitution.
Maybe taking away guns would take away our freedoms, but talking about it won’t. And the most important guarantee of our liberty is not the 2nd Amendment or even the 1st — it’s Article V, which outlines the procedure for amendments. Article V is what makes the Constitution a living document, even for the most committed originalist.
I believe the 2nd Amendment ensures an individual the right to bear arms. I also believe the 18th Amendment banned alcohol and that the Constitution originally installed the runner-up in presidential elections as vice president and protected my right to own slaves. As someone who likes a cold beer, believes people should be paid for work and doubts Hillary Clinton would have enjoyed being President Trump’s veep, I’m all in favor of the 12th, 13th and 21st amendments. But I don’t believe those things because they’re amendments.
We don’t disrespect the Constitution when we change it — like when we added the 2nd Amendment, in 1791. We all want to live in a country governed by the rule of law, and that includes deciding which laws rule. Rights are important — and rigidly defined. Talking about rights can make it harder to talk about what’s right. That’s doubly true for a Constitution as sacralized as ours.
The 2nd Amendment makes gun-rights advocates righteous and intellectually lazy; instead of advancing plausible arguments about security, they too often point to text. It makes gun-control advocates deploy awkward, hypocritical arguments in order to fit them within the Constitution’s limits. This leads to pointless debate about what is or isn’t a militia, well-regulated or otherwise, when the only sensible thing to say is: Whatever the Founding Fathers meant, things are different today. We don’t have militias, but we do have semi-automatic rifles and buildings with 32 stories. So what would you like to do?
As long as there’s a 2nd Amendment, any regulation is plausibly suspect. We’ll be haggling over silencers, magazines, background checks — “chipping away at the 2nd Amendment,” as Trump has put it. We’ll be quibbling over everything except the heart of the issue, which is what to do about the 300 million guns in this country.
Rights matter, and protecting rights carries costs. We need a real debate about our willingness to pay those costs. There is serious disagreement about whether guns protect liberty or threaten it — disagreement we don’t have when it comes to the value of voting or free assembly. That alone is reason enough to reconsider the 2nd Amendment.
Our Constitution is unusually difficult to amend, but amendment is possible. So it’s our responsibility to consider not just what the Constitution says, but what it should say.
And on guns, what the Constitution should say is nothing. The result might be greater freedoms in some states, greater restrictions in others. We could ban all guns, or not. If Americans want to carry concealed pistols and long rifles in public — if they believe guns prevent tyranny and save lives — they can demand their legislators keep the public square open. If Americans want stricter background checks, mandatory storage, even prohibition — if they believe the 90 lives lost daily from suicides, murders and accidents are not worth whatever else guns give us — they can demand that, too.
We don’t need an amendment prohibiting guns or protecting them. We just need a 28th Amendment that repeals the 2nd. The Constitution should be silent, because there’s a lot we need to talk about.
Timothy William Waters is a professor at Indiana University’s Maurer School of Law and the associate director of the Center for Constitutional Democracy.