Wednesday, February 21, 2018

The Constitution Is Not Scripture

The student marches and walk-outs are letting us know that we have reached a watershed moment on gun control. But whether based on NRA campaign funding or dogma regarding the Second Amendment, the Republican Party seems undaunted and committed to holding the line.

As if to provide evidence that such is the case, the overwhelmingly Republican Florida House of Representatives voted not to even consider legislation that would ban so-called “assault weapons” in their state. [1] In case memory doesn’t serve, Florida is where the most recent school shooting occurred.

One would think that politicians would, of all people, be concerned about what they look like, and of how they’re going to be viewed by history. If they can’t muster that much insight, you’d think they would at least concern themselves with upcoming elections. And with the clamoring by high school students for measures to abolish the tool of the school shooter trade, it is amazing to see how they respond with such indifference to the concerns of these soon-to-be voters.

What do they think? That these kids will grow out of their desire to not be shot at?

But let’s consider the possibility that their votes aren’t corrupted by NRA money, or the hope of receiving some. What could these legislators be thinking by not taking immediate action on behalf of the public safety?

It is not to be denied that there is a very strong argument that the possession of “assault weapons,” particularly the AR-15, which is the civilian version of the U.S. military’s M-16, is as constitutionally protected as the possession of any weapon, if not more so. The Second Amendment particularly mentions the need for a “militia” as the basis for the right of the “people” to keep and bear arms.

That said, the right to own and possess an AR-15 is hardly unassailable, even with the Second Amendment in place. The Supreme Court, having already held that the Second Amendment protects the right to own and possess weapons for the purpose of self-defense [2], could consistently hold that weapons that are properly considered “militia” weapons are only protected within the context of an organized militia, like the National Guard. This would leave the constitutional protection as one permitting the ownership of weapons that are necessary for self-defense, and that category does not include semi-automatic rifles with large-capacity magazines. So the banning of the possession of AR-15s and similar weapons for non-militia purposes does not have such a foreordained outcome so as to make legislation of that kind a waste of time.

But, perhaps, these legislators, not thinking out so far, sincerely believe that they are protecting the Bill of Rights. Let’s think the best of them.

If that is their concern, it is obvious that they have acquiesced to what one might call “constitutional fundamentalism.” Constitutional fundamentalism forgets that the Constitution is a human document; that it itself provides a method for amendment. It also provides a way for people to avoid confronting issues with anything like analysis, and instead refer to a kind of secular scripture as if it came down from Mt. Sinai.

But the Constitution is not scripture. It did not come down from Mt. Sinai. And we need to deal with the public danger created by permitting high-capacity, semi-automatic rifles to be in private hands. Those who resist such a necessary change will incur the condemnation of history, if not the electoral wrath of the citizenry.