92 lines
4.8 KiB
Plaintext
92 lines
4.8 KiB
Plaintext
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Repeal Second Amendment and save lives
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By George Will
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Two staggering facts about today's America are the carnage that is a
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consequence of virtually uncontrolled private ownership of guns and
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Americas' toleration of that carnage.
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Class, not racial, bias explains the toleration of scandals such as
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this: More teen-age males die from gunfire than from all natural
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causes combined, and a black male teenager is 11 times more likely
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than a white to be killed by a bullet. If sons of the confident,
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assertive, articulate middle class, regardless of race, were dying
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in such epidemic numbers, gun control would be considered a national
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imperative.
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But another reason Americans live with a gun policy that is demonstratively
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disastrous is that the subject was constitutionalized 200 years ago
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this year in the Second Amendment: "A well regulated militia being
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necessary to the security of a free state, the right of the people
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to keep and bear arms shall not be infringed."
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Many gun control advocates argue that the unique 13-word preample
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stipulates the Amendment's purpose in a way that severely narrows
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constitutional protection of gun ownership. They say the Amendment
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obviously provides no protection of individuals' gun ownership for
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private purposes. They say it only provides an anachronistic protection
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of states' rights to maintain militias.
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However, Sanford Levinson of the University of Texas Law School
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says that is far from obvious. In a Yale Law Journal article, "The
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Embarrassing Second Amendment," he makes an argument that is
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dismaying to those, like me, who favor both strict gun control and
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strict construction of the Constitution. He begins with some historical
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philology showing that the 18th century meaning of "militia" makes even
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the amendment's preamble problematic.
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He notes that if the Founders wanted only to protect states' rights
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to maintain militias, they could have said simply, "Congress shall
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have no power to prohibit state militias."
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The Second Amendment is second only to the First Amendment's protections
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of free speech, religion and assembly, because, Levinson argues, the
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Second Amendment is integral to America's anti-statist theory of
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republican government. That theory says that free individuals must
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be independent of coercion, and such independence depends in part on
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freedom from the meance of standing armies and government monopoly
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on the means of force.
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In a most important Supreme Court case concerning Congress' right to
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regulate private gun ownership, upholding the conviction of a man who
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failed to register his sawed-off shotgun, stressed the irrelevance
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of that weapon to a well-regulated militia. Gun control advocates argue
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that this lends no support to a constitutional right to ownership for
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private purposes.
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But Levinson notes that the court's ruling, far from weakening the Second
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Amendment as a control on Congress, can be read as supporting
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extreme anti-gun control arguments defending the right to own weapons,
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such as assault rifles, that are relevant to modern warfare.
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The foremost Founder, Madison, stressed (in Federalist Paper 46)
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"the advantage of being armed, which the Americans possess over the
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people of almost every other nation." So central was the Second Amendment
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to the understanding of America's political order, Justice Taney
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in the Dred Scott decision said: Proof that blacks could not be citizens
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is the fact that surely the Founders did not imagine them having the
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right to possess arms.
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The subject of gun control reveals a role reversal between liberals and
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conservatives that makes both sides seem tendentious. Liberals, who usually
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argue that constitutional rights must be respected regardless of
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inconvenient social consequences, say the Second Amendment right is too
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costly to honor. Conservatives who frequently favor applying cost-benefit
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analyses to constitutional construction advocate an absolutist
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construction of the Second Amendment.
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The Bill of Rights should be modified only with extreme reluctance but
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America has an extreme crisis of gunfire. And impatience to deal with
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it can cause less than scrupulous readings in the Constitution.
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Whatever right the Second Amendment protects is not as important as it
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was 200 years ago, when the requirements of self-defense and food-
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gathering made gun ownership almost universal. But whatever the right
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is, there it is.
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The National Rifle Association is perhaps correct and certainly is
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plausible in its "strong" reading of the Second Amendment protection
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of private gun ownership. Therefore gun control advocates who want
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to square their policy preferences with the Constitution should squarely
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face the need to deconstitutionalize the subject by repealing the
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embarrassing amendment.
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